McCulloch v. Industrial Com. , 109 Colo. 123 ( 1942 )

On Petition for Rehearing. [2, 3] Counsel for claimant confuses mildness of expression in our opinion with lack of apprehension of the record. Perhaps it were well to amplify. From claimant's own testimony it appears that from responsible company source he was apprised that he should wear goggles while engaged in the kind of work which he was performing when the accident occurred. In the course of his examination in the hearing before the referee he was shown glasses, and in answer to inquiry, said: "That is the glasses, the safety glasses we were supposed to wear. Q. Were those the ones you wore part of the time on December 22nd, 1939, when this accident occurred? A. Yes. * * * Q. Who gave them to you? Mr. Murphy [Identified as mine foreman or superintendent]. Q. What did Mr. Murphy tell you when he issued those? A. Well, we were to wear them where it was deemed necessary, where coal was flying or we was picking." Such oral direction sufficed. Formal adoption and posting of the rule by the company was not necessary. Stockdale v. Industrial Commission,76 Colo. 494, 232 P. 669. The order to claimant, although given orally in the manner mentioned in the record "was a safety rule, within the meaning of the Act." Industrial Commission v. Funk, 68 Colo. 467, 191 P. 125. The violation of a reasonable safety rule does not operate to "defeat compensation, but only reduces it fifty per cent." Ibid. Only to the indicated limited extent was the rule employed in this proceeding.

[4-6] Did claimant violate the rule or order? He was asked: "Do you know when you got this coal in your eye? A. I couldn't say exactly. It was when we were working. You always get a certain amount of stuff in your eyes and you never think a great deal about it. We use a wash. Q. Do you wear goggles? A. I had been. I might not have had them on at that time. Q. You are supposed to wear them when you are working? A. Well, as soon as conditions seem to demand it." Again: "Q. Did you have your goggles on when you noticed you had something in your eye? A. Well, I couldn't tell you exactly that. I know when the coal got to popping so bad I had to put them on." At another point: "Q. You should have had your goggles on when you were cutting? A. Well, I wouldn't say positively." A fair deduction is that claimant knew the rule, and that its reasonable requirement was that he wear goggles while engaged in performing the duty in the course of which he suffered the injury involved. His whole duty was not observed by postponing use of the goggles until "the coal got to popping so bad I had to put them on." By this course he assumed the risk of diminution of recovery for the very injury — most regrettable — which he suffered. The Workmen's Compensation Act, a modern and forward looking law, while contemplating speedy and inexpensive means of assured recovery by an injured employee, also requires observance by the employee of that in which claimant here failed. But, as said, claimant's conduct, however otherwise it may be construed, was not shown to have been wilful, hence, as further emphasized, the statute constituting the basis for reduction of the amount of recovery is not applicable. We are not of that view. Claimant knew of the company rule or order and intentionally omitted to observe it. In the sense of the statute involved, what claimant did was "wilful." Stockdale v. Industrial Commission, supra, determines the point. It is clear that claimant "acted upon his own judgment * * * about the use of goggles and was not governed by the rule." Such conduct "was wilful disobedience." Nashville, C. St. L. Ry. v. Coleman,151 Tenn. 443, 269 S.W. 919.

[7] We have not failed to note that the commission did not expressly say claimant had wilfully failed to observe the company's safety rule, but, viewed in the light of the record, we think its finding is equivalent thereto. "At the time the coal entered his eye," said the commission, "claimant was not wearing goggles, in violation of respondent's safety rules," and, predicated thereon, ordered fifty per cent decrease of compensation, an order only consistent with the conclusion that claimant's failure was wilful. We believe the petition for rehearing is without merit. Let it be denied.

MR. CHIEF JUSTICE YOUNG and MR. JUSTICE BAKKE concur.

MR. JUSTICE BOCK dissents.