293 P. 483 | Kan. | 1930
The opinion of the court was delivered by
Joseph Supica, an employee of Armour & Company, was killed on May 22, 1929, and compensation was awarded to his wife in the sum of $2,000, payable at the rate of $9 per week, and also funeral benefits to the amount of $150, and $2,000 to his minor children payable in like manner. No question was raised that the parties were within and governed by the compensation law, nor as to compliance with the preliminary steps essential to a recovery of compensation, if any such liability existed. The only question in the appeal is, Did the death of Supica result from an accident arising out of and in the course of his employment?
Upon a hearing before the compensation commissioner it was
It appears that as the watchman passed around over the property he was to ring bells at certain periods; that he had rung a bell within the building at 12:42 a. m. and that he was killed at or about five minutes to one o’clock. There were two rows of buildings in the plant and a train shed about 300 feet long between these buildings over the loading tracks. He was seen upon the roof of this train shed, a part of the plant, at the time of the accident, by a fellow workman who testified that the watchman was using his flash light. The witness saw a light flash, then heard a cracking noise and saw Supica fall through the roof, forty to fifty feet below. There were no bells on this roof nor any place outside of the buildings in the plant. The company insist that the watchman had no business out there, that he may have gone there for purposes of his own, and that therefore it cannot be held, in the absence of direct evidence, that he was acting within the course of his employment. Whether the watchman was acting outside of the duties for which he was employed when the accident occurred, or whether he was acting within the scope of his usual duties and thus within the course of his employment, is the only question discussed by the parties.
It is conceded that the burden of proof to establish the fact was
Was the inference of the commissioner and of the trial court that the injury to the watchman arose out of and occurred in the course of his employment justified? It appears to us that the testimony of the eyewitness together with the circumstances mentioned were sufficient to justify that inference. In Heileman Brewing Co. v. Shaw, 161 Wis. 443, a workman whose duties took him to all parts of the brewery was found between eight and nine o’clock lying unconscious with bruises on his head and shoulders, on the basement floor beneath a guarded temporary opening in the floor above, and he died the following morning. Findings were made by the commission to the effect that his death was caused by accidental injury sustained while he was performing services growing out of and incidental to his employment. The court said:
“There is evidence to support the inference that he on Sunday evenings usually went to the part of the building where he fell, and that at times on •Sunday evening he performed services in any part of the building. Under the circumstances it cannot be said that the commission’s finding that decedent was injured in the course of his employment is wholly unsupported by the evidence. The facts and circumstances of the case amply support the conclusion of fact that decedent accidentally sustained a personal injury which caused his death and that it was incidental to his employment.” (p. 445.)
See, also, Cranney’s Case, 232 Mass. 149; W. R. Rideout Co. v. Pillsbury, 173 Cal. 132; Bryant, Adm’x, v. Fissell, 84 N. J. L. 72; Manziano v. Public Service Gas Co., 92 N. J. L. 322.
The judgment is affirmed.