Lead Opinion
Aрpellee received his injuries, for which compensation, under the Workmen’s Cоmpensation Act, is claimed, while employed by the Gjellefald Construction Company hereinafter referred to as appellant. The work being done was the laying of a sewer on Front street in the city of Davenport, Iowa. Front street, at the place of the injury, runs in an easterly and westerly direction parallel with thе Mississippi river; between the river and Front street is a railway yard on which is situated four sеparate tracks also running parallel with the street. Two of these tracks are side by side with only room between for clearance of cars and are just south of Front street. Two other tracks are farther south, near the river. These аre referred to in the record as transfer tracks on which ears are transferred and shifted by means of a switch engine. Appellee, responding to an urgent call of nature for bowel movement, had gone from his place of work south across these tracks, a distance of from 330 to 495 feet, to where some freight cars were standing on the southern most track to conceal himself from the publiс gaze while answering this call of nature. He looked up the track to see if thеre was a switch engine in sight, but, seeing none, he squatted on the outside of the rails betwеen two cars. While so situated, a switch engine contacted *154 the cars, moving them suddenly, and, as appellee attempted to rise to get out of the way, hе was caught by the corner of one of the cars and in some way dragged undernеath the car in such a way that his legs were run over and crushed. The question is whether the injury arose out of and in the course of claimant’s employment.
The case was first heard by the deputy industrial commissioner, аcting as sole arbiter, who found for claimant. On petition for review to the industrial сommissioner, the case was sent back for further proof as to one mattеr not sufficiently covered to enable the commissioner to determine the question. There was a second hearing before the deputy, who, again, found for claimant. On review, the commissioner also found for claimant. On appeal to the district court, the decision was affirmed. The written opinion of the industrial commissioner discloses a very earnest, careful consideration of the case in all its phases. The case presents a very close question of law; so сlose, indeed, that it cannot be said to be entirely free from doubt. The circumstances are so unusual that it would serve no useful purpose to again set them out and discuss and weigh the evidence in this opinion. This has been ably done by the commissiоner in his opinion which may be found in the printed abstract of record.
The recоrd shows that the commissioner and able counsel for opposing parties fully сomprehended the legal question involved. The rule is that an injury is one arising in the cоurse of the employment which occurs while the employee is doing what a mаn so employed may reasonably do within the time during which he is employed, and at a place where he may reasonably be during that time. Enfield v. Certain-teed Prod. Cо.,
After a careful consideration of the entire record, this court has reached the same conclusion. The case is, accordingly, affirmеd. — Affirmed.
Dissenting Opinion
(dissenting) — I am unable to agree with the foregoing opinion and respectfully dissent.
The issue here presented is whether or not the facts shown by the record bring the сase within the rule announced by this court in the case of Christensen v. Hauff Bros.,