128 S.W.2d 913 | Ky. Ct. App. | 1939
Reversing.
The appeal is from a judgment confirming a compensation award to Sam Bach, an employee of the appellant, Meem-Haskins Coal Corporation.
Bach was a helper in the operation of a coal cutting machine. He went into the mines to work about five o'clock in the afternoon of October 30, 1936, and came out about half past two the next morning, having finished his task and been at work for nine hours. He and his buddy, Lee, went in the "sand house" where the night boss was lying down by the sand stove. The night was chilly. Two other men were asleep there. Lee *537 went home but, according to Bach, the night boss said: "Lay down here with me, Sam; I might need you before daylight anyway." He did so, but, getting chilly and seeing a fire in the blacksmith shop, about a hundred yards away, suggested that he would go down there by the fire. The boss said all right. He testified the boss had asked him on an average of once or twice a week during the three months he had been at work to stay after his shift that he might be available should another man get sick, or be hurt, or call for help. During the time he had slept in the sand house or the blacksmith shop. The forge consisted of a concrete platform two and one-half feet high and five feet square, with a grate or basket twelve or fifteen inches in diameter in the center for the coals. Bach laid down on this platform, "just kind of wrapped around the fire; kind of crooked; had to the way they were built; they are not long enough hardly and you wrap up around the fire." Bach's clothing was oily and he had less than a two foot ledge right up against the fire on which to lay. He dropped off to sleep and a live coal rolled down and set his clothing afire, and caused serious personal burns. This is the claimants' evidence in its most favorable aspect.
As we appraise the entire record, the preponderating and weight of evidence is that there was no custom to keep Bach or any of the other men on duty after they had come out of the mine, except they had been specifically notified before they came off duty; and though there had been some violations of the rule prohibiting the men sleeping in the shop, they were not such as to constitute a waiver of the rule by the employer. On this occasion, it seems to us, the better evidence is that Bach was waiting in the shop at his own convenience until breakfast at his boarding house was ready. Were we reviewing the verdict of a jury, the judgment would be reversed on the ground that it was flagrantly against the evidence. But by the terms of Section 4935, Kentucky Statutes, unless there is an entire absence of substantial and credible evidence to support the finding of fact by the Workmen's Compensation Board, the courts, in the absence of fraud, must accept it and determine the law of the case to be applied to the facts so found. Employers' Liability Assurance Corporation v. Gardner,
In the early development of this remedial social legislation, the Massachusetts court gave a construction or definition of this condition under which an employer is liable for compensation for injuries to or death of an employee which has been generally accepted by the courts of the country. In re McNicol,
Closer to the case in hand is the case of Vincennes Bridge Company v. Industrial Commission,
"Where an employee chooses to go to a dangerous place where his employment does not carry him, and thereby incurs a danger of his own choosing altogether outside of any reasonable requirement of *540 his employment, such risk is not an incident to the employment. The employee may not unnecessarily increase the risk of injury beyond that contemplated in his contract of service, or choose an unnecessarily dangerous place or manner for the performance of his service, and there must be a proximately causative relation between the nature of his work and the injury, so that it may be sure that the injury had its origin in a risk connected with the employment, from which the injury, though unforeseen, may after the event be recognized to have flowed as a rational consequence. * * *
"In climbing about the engine, Hoffman unnecessarily placed himself in a dangerous position, as was demonstrated by the injury he received. He was doing nothing which he was directed or employed to do. His negligence was not merely contributory negligence in the performance of his work, but was an unnecessary exposure to danger entirely aside from the work he was employed to do. The award of the commission was manifestly against the evidence, and the court erred in not setting it aside."
In Pisko v. Mintz,
*541"There is a clear distinction between these facts and the case where an employee while asleep in his room is burned up because of a fire originating outside of his apartment which renders the place he is compelled to occupy unsafe and dangerous. The risk is at once connected with the place of his employment. When the place is rendered dangerous by some act or condition due to his occupancy and not due to the place itself, the injury or death does not come within the intent or purpose of the law."
In Pacific Fruit Express Company v. Industrial Commission,
Appellee relies upon National Biscuit Company v. Roth,
"The controlling question here presented is whether Richards, the plaintiff, when injured, was actually doing his work he was employed to do, or whether he was doing something substantially different. He was injured while on duty, in his working hours, when waiting for an opportunity to continue his service of employment. The accident occurred when the plaintiff was at a place where he might reasonably be. There was no turning aside upon his part, no attempt to serve ends of his own."
Like those cases is Allen v. Columbus Mining Company,
"If, however, as is indicated by some of the evidence, decedent was asleep at the time, it would be clear that he had abandoned his employment for purposes of his own, and that his injury did not arise out of and in the course of his employment. But the evidence upon this feature of the case is contradictory."
As has been frequently stated, "in the course of * * * employment" points to the place and circumstances under which the accident takes place and the time when it occurs. Even if it be regarded that the appellee was injured while waiting for a possible call to work, we think there was a break in the employment when he wrapped himself around and up against a grate of burning embers and went to sleep — he was doing something wholly foreign to his employment. There was no causal connection between the origin — some hazard of his employment — and the accident. It is not reasonably conceived that the injury flowed as a rational consequence from the source of any occupational risk.
Accordingly, the judgment is reversed for consistent proceedings.