79 Ind. App. 17 | Ind. Ct. App. | 1922
This is an appeal from an award of compensation in favor of appellees, arising from the death of Nick Spirakis, an employe of appellant. It is based on a claim that there is no evidence to sustain the finding that said employe “received a personal injury by an accident arising out of and in the course of his employment, resulting in his death.” The undisputed evidence which appears as a stipulation establishes the following facts, pertinent to the question submitted for our determination: On the day said Nick Spirakis met his death, he was an employe of appellant, and had been so engaged for several months prior thereto. He worked in appellant’s plant on said day, and met his death by accident on his way to board a train, after he had quit his work, under the circumstances hereinafter stated. The New York Central Railroad Company’s tracks run in an easterly and westerly direction near appellant’s factory, which is situated on the north side thereof. Prior to the accident in question, said company had granted to appellant and its servants the right to use a private crossing, running from its premises across said railroad tracks. After said grant, all of appellant’s employes used said private roadway over said tracks in going to and from their work, as there was no other means of ingress or egress to and from the buildings of appellant’s factory, which are located about one hundred feet north of. the north right of way line fence of said company. There is a line of railroad, owned by another company, between said factory buildings and said fence. The space between said fence and the north line of rails of the New York Central Railroad Company is about fifty feet in width. The tracks of said company at such place consist of a low speed track on the north, two main tracks in the center, and a low-speed track on the south. Prior to the accident resulting in the death of Nick Spirakis,
“The relation of carrier and passenger commences when a person, with the good-faith intention of taking passage, with the consent of the carrier, express or implied, assumes a situation to avail himself of the facilities for transportation which the carrier offers. Appellee, having entered upon appellant’s premises for the purpose of taking passage on a train in due course, and purchased a ticket entitling him to transportation between designated points, was, while approaching the train upon which he was to be carried and by which he was injured, clearly a passenger.”
We conclude that said decedent, at the time he sustained his injuries, was not within said first exception, and hence the general rule stated above is applicable.
Appellees have cited a number of facts, shown by the stipulation, with reference to the location of the crossing and station in question, the means of access to the same, the agreement under which they were established and maintained, the purposes for which they were used, the presence of a watchman and the like; but none of these are sufficient to overcome the irresistible conclusion that at the time said decedent received his fatal injuries his relation with appellant as an employe had been suspended, and the relation of passenger with the New York Central Railroad Company had been assumed. This being true, the finding that said decedent, while in the employ of appellant, “received a personal injury by