Lead Opinion
Tbе sole legal question presented by this record is whether under tbe facts conceded in tbe agreed statement and disclosed in tbe evidence tbe husband of the plaintiff below wаs injured in tbe course of bis employment. Tbe record discloses and tbe commission concedes that upon tbe morning in question, in tbe neighborhood of 2 o’clock, after Henry bad started bis work for tbe day by giving his order for tbe amount of milk required for bis delivery route, be went for bis breakfast to tbe north across tbe tracks of tbe Big Four Railroad, and to come back to tbе dairy was compelled to return across those tracks by whatever street be proceeded. However, it is the contention of tbe Industrial Commission that he had a choice as to where be should secure bis meal; that he could have brought his lunch with him; that be could have gone to a restau *620 rant upon the other, or southerly, side of the track; that he was in еxactly the same position as if at noon he had gone out to get his lunch and been struck by a street car or an automobile; and that hence the accident did not arise out of and in the course of his employment.
The court in his charge to the jury instructed them to take into consideration “the nature of the employment, the hours of service required оf the decedent, the nature and condition of the premises where the deceased was employed, and of the premises surrounding the same, the natural and ordinary conduct of persons so employed during such hours while acting in such employment.” The plaintiff in error requested and the court refused to charge the jury that, if they found Henry was injured on a public alley, and killed by being struck while crossing railroad tracks returning to his place of employment from a restaurant where he had eaten his breakfast, such injury would not be one in the coursе of, and arising out of, his employment, within the meaning of the Ohio Workmen’s Compensation Act (Section 1465-37 et seq., G-eneral Code), and their verdict should be for the defendant.
Was the giving of the first chargе or the refusal of the request to charge reversible error?
The majority of the court considers the case of
Industrial Commission
v.
Barber,
The record shows that it was the custom for the *621 men who worked during night hours at the dairy, after they had started their employment, while waiting for the orders to be filled, to go to get their breakfast, and then return to the plant. This was the practice with the men who began work at these hours, acquiesced in by the employer, evidently becausе it contributed to the men’s efficiency. Hence it was a custom incidental to the employment, and the employer contemplated that Henry should act according to the custom. Therefore the court did not err in instructing the jury to take into consideration not only the nature and the condition of the premises, but also the nature of the employment аnd the hours of service required of the decedent and the natural and ordinary conduct of persons so employed during such hours.
Proceeding to consider whether the court committed reversible error in refusing the charge requested, we overrule this objection also. Under this record, the deceased at the time of the accident had already entered upon his employment, and was traveling the most direct route to perform the next necessary act in the course of such employment. In order to complete thаt route and to do that act he was compelled to cross tracks immediately adjacent to the premises of his employer. The location of the plant was at a place so situated as to make the customary and only way of immediate ingress and egress toward the north one of hazard. If Henry went toward the north from the plant, he could nоt select his way back. He had no other choice than to go over the railroad tracks in order to return to his work. In view of the nature of the employment, the hours of service, the condition of the premises and *622 the location of the tracks, Henry was obliged regularly and continuously to cross these tracks, and hence was subjected to a degreе of exposure to the common risk beyond that to which the general public was subjected.
This is the reasoning of Mr. Justice Sutherland in the" case of the
Cudahy Packing Co. of Nebraska
v.
Parramore,
Holdings within the reasoning of the
Parramore case
are found in
Lumberman’s Reciprocal Assn.
v.
Behnken,
In the Procaccino case, supra, an employee while returning from a meal was killed at a railroad crossing near the plant, after having crossed the canal by one of several footbridges maintained by different manufacturing plants. It was not impossible for the employee to have used another method of approach. The Supreme Court of Connecticut pointed out in this connection that “It does not render the dangers of this contemplated method of approach any less an incident of the dеcedent’s employment that there existed a method of approach by way of the Warehouse Point highway which would permit him to cross the railroad tracks on a highway. This method of approach for persons in the situation of the decedent was highly inconvenient, and it was not contemplated by the defendants in his employment that he should ordinarily use it.”
In the case of
Bountiful Brick Co.
v.
Industrial Commission,
*624
In
Lovallo
v.
American Brass Co.,
In the instant case we think that the hazard of this track immediately adjacent to the plant constituted a hazard of the employment for men who as an incident to their work, after their work had begun, customarily with the consent of their employer went across the tracks to get their breakfast in the early morning hours, and that the trial court did not err, either in its charge, or in refusing to give the charge requested on behalf of the commission.
Judgment affirmed.
Concurrence Opinion
concurring. I concur in the judgment in this case, and also in the propositions of law stated in the syllabi, except that I am unable to base the first syllabus upon the fact of the railroad being immediately adjacent to the premises of the employer. It seems that the rule of law must be the *625 same whether thе railroad is adjacent or more remote, so long as it lies between the premises of the employer and the restaurant to which the employee has gone for his breаkfast during the period of the performance of his task. The legal question in this case is whether the employee was in the course of his employment while going for something to eat, and that question cannot be influenced by the proximity of the railroad to the premises of the employer.