75 Ind. App. 124 | Ind. Ct. App. | 1919
Appellant filed her claim against appellee before the Industrial Board of Indiana, under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) alleging, among other things, that on October 14,1918, her husband, Henry G. Swing, died as a proximate result of personal injuries received by him by reason of an accident arising out of and in the course of his employment by appellee.
On a hearing before the full Industrial Board the following finding of facts was made: “And the full board having heard the argument of counsel, having reviewed the evidence and being duly advised in the premises finds that on the 14th day of October, 1918, one Henry G. Swing was in the employment of the defendant at an average weekly wage in excess of $24.00; that on said date, while upon the defendant’s premises and within the hours when he was required to be at work under his employment, the said Henry G. Swing suddenly died ; that the evidence does not show that his death was due to an injury by an accident arising out of and in the coursé of his employment with the defendant; that he was not working at the time of his death and was not engaged in the discharge of the duties of his employment and was not performing any act incident thereto ; that the evidence does not show that he suffered any' injury from any accident arising out of the performance of his work or the performance of any act incident thereto. And the full board cannot find and does not find from the evidence, that his death was due to an injury by an accident arising out of and in the course of his employment; that the said Henry G. Swing left surviving him the plaintiff, his wife, and a granddaughter,
But appellant contends that the evidence is insufficient to sustain that portion of the finding of facts which we have held precludes an award in her favor. This contention requires us to review the evidence in that regard. The evidence introduced before the Industrial Board tends to show that the husband of appellant was fifty-three years old, and in the employ of appellee; that he had been so employed for about five weeks; that his work consisted in piling billets in cordwood style under a monorail, which would pick them up and carry them away; that he was assisted in his work by another employe of appellee; that they would place about eighteen billets in a pile, and then wait until the monorail moved them away before making another pile; that while they were thus waiting there was no work for them to do; that, on the occasion of the death of appellant’s husband, he and his assistant had finished making a pile of billets, and were waiting for the monorail to come and take them away; that, while thus waiting, he left the place where he was required to be when piling billets, and went over toward the west side of the yard in which he was working; that in so doing he crossed over a small railroad track, which lies in a little cut with sloping banks; that after he had crossed over this track he stood on the west side thereof, near the top of the bank, and was telling another employe of appellee about being criticised for taking so much time to eat his dinner; that about that time a clamp fell some twenty feet from where he was standing, making a noise which attracted the attention of the employe to whom he was talking;