179 N.E. 888 | Ill. | 1932
By leave of this court plaintiff in error, the Consolidated Coal Company of St. Louis, has sued out a writ of error to review a judgment of the circuit court of Williamson county vacating and setting aside an order of the Industrial Commission, under the Workmen's Compensation act, in plaintiff in error's favor, setting aside an award of an arbitrator against it and in favor of Clarence Long and confirming the award of the arbitrator, which ordered plaintiff in error to pay Long $19 per week for eleven weeks and $19 per week for the further period of twenty-two and one-half weeks as compensation for an accidental injury suffered by Long in the scope and course of his employment *251 by plaintiff in error, which injury caused ten per cent permanent loss of the use of his left arm.
Long, on March 14, 1929, while in the employ of plaintiff in error, sustained an accidental injury. He was a coal miner, and the day of the injury he, with others, was engaged in mining and loading coal in one of several entries in plaintiff in error's mine. The car which they were loading being filled and there being present no regular motorman whose duty it was to take out the loaded cars and replace them with empties, Long got a wireman's motor which was in an entry in the same territory as that in which he was working, took out the loaded car and was bringing in an empty when he was injured.
It is contended by plaintiff in error that Long was employed to do a certain service and was injured in the performance of a different service voluntarily undertaken and that in such case the master is not liable, and that where a servant voluntarily and without direction from the master, and without his acquiescence, goes into hazardous work outside of his contract of hiring, he puts himself beyond the protection of the master's implied undertaking, citing Lumaghi Coal Co. v.Industrial Com.
While a court is not warranted in reversing the finding of the commission unless the award is shown to be clearly against the manifest weight of the evidence, yet it is the duty of the courts to weigh and consider the evidence in the record, and where it is found that the decision of the *253
commission is without substantial foundation in the evidence or against the manifest weight of the evidence such decision must be set aside. Berry v. Industrial Com.
The judgment of the circuit court is affirmed.
Judgment affirmed.