Northwestern Iron Co. v. Industrial Commission

| Wis. | May 4, 1915

WiNsnow, O. J.

The claimant’s duties were to dump the tram car when it- came out, pick up the fallen briquettes, transfer the car to the return track, and wait for another car. Apparently he had intervals of rest when he was expected to pass the time as best he could, although exposed to the weather on a cold night. If we credit the claimant’s own story, there is no question about his right to compensation, because he was picking up briquettes at the time the second car came from the kiln and struck him.

The Commission, however, did not decide whether the claimant or Vignovich told the truth, but held that in either case compensation must be paid, hence we must consider the case on the assumption that the story told by Vignovich is true. This story is in effect that, tbe nigbt being cold, tbey blocked a car as it came out and sat down on tbe track in front of it to get warm from tbe beat of tbe briquettes, which were just out of tbe kiln; that in a few minutes he left claimant lying on tbe track in front of tbe car and went over to bis own track twenty-five feet away, and some minutes later beard claimant boiler and came over and found him caught between tbe cars. Tbe only reasonable inference from this testimony seems to be that tbe claimant, instead of at once proceeding to pick up tbe fallen briquettes, dump tbe car, and thus prepare to receive tbe next car, blocked tbe car and proceeded to sit down or lie down in front of it in order to get warm, and was there caught by the next car either while be was engaged in getting warm or while be was picking up briquettes after be bad got warm.- This would be good ground upon which to find tbe claimant negligent, but negligence does not prevent compensation.

Clearly this testimony does not show that tbe injury was intentionally self-inflicted; hence 'the only question is, Does it show that at tbe time of tbe accident tbe claimant was not performing service growing out of and incidental to bis employment? We think not.

Tbe man’s duties involved periods of leisure during which apparently be was expected to kill time as best be might, with no specific direction as to what be should do or where be should wait. Tbe nigbt was cold and be put off dumping tbe car until be could warm himself from its heated contents. To say that in so doing be bad left tbe master’s employment, was pursuing his own private purposes, and doing something foreign to tbe work be was employed to do, is illogical to a degree. To protect himself from undue and unnecessary exposure to tbe cold was a duty be owed bis master as well as himself, and it does not follow that be left bis master’s employment because be negligently allowed the second, car to run into him while be was warming himself.

By the Ootirt. — Judgment affirmed.