Collins v. Troy Laundry Co. , 135 Or. 580 ( 1931 )

In Banc. This is an appeal from a judgment awarding damages for personal injuries. The sole question presented is: Did the injury complained of arise out of and in the course of plaintiff's employment. If it did it was a complete defense; if not, it was no defense.

The defendant is a corporation engaged in the laundry business in Portland. The laundry building, where the plaintiff worked, is a two-story structure, extending on East Pine street from East Tenth street to East Eleventh street (200 feet), and on East Tenth street and East Eleventh street (100 feet). The numbered streets run northerly and southerly, and at right angles to Pine street. The plaintiff and many other employees worked on the second floor of the building, and their common entrance and exit was an inclosed stairway located in the northeasterly corner of the building, leading along the north wall down to Eleventh street. Immediately south of the stairway was what is termed a driveway, 12 feet wide, leading into the building. The record does not disclose the purpose of this driveway, but the sidewalk was not peculiarly a part of it; that is, that part of the sidewalk immediately in front of it was no different than the rest of the sidewalk along the premises. The defendant used many trucks in collecting and delivering laundry. These trucks were loaded and unloaded, from and to the building, over the sidewalk adjacent to the building on Eleventh street. One or more of these trucks were at this place engaged in this process almost continuously, from seven o'clock a.m. until seven o'clock p.m. Eleventh street is a public street, improved with sidewalks twelve feet wide, open to and used by the public generally. The plaintiff's work was entirely within the building, and was in no way connected with the loading or unloading of the trucks.

On the 7th day of December, 1927, the plaintiff completed her day's work at five o'clock p.m.; rang out her card, after which she went to the dressing room; changed from her working clothes into her street clothing; and then about five-thirty p.m. left the building by the usual exit. Upon reaching the sidewalk she turned south and proceeded but a short distance when she tripped over some iron bars. These bars were about seven feet long, laid parallel to each other. One end of each bar was attached to the rear end of a truck which was standing backed to the west curbing of Eleventh street, and the other ends of the bars were rested on the sidewalk towards the building, creating an obstruction to persons walking northerly or southerly past the building. The truck belonged to the defendant, and at the time was being used in its business in connection with either receiving or discharging packages of laundry from or to the building in the customary and usual manner. The way she selected to travel was perhaps the most convenient way for her, but not by any means the only practical one.

In the pleadings there were other issues presented; the negligence of the defendant; contributory negligence of the plaintiff; assumption of risk; and the extent of injury; but these latter issues are all out of the case so far as this appeal is concerned.

At the close of the testimony, defendant moved for a directed verdict on the ground that the evidence showed that the injury complained of arose out of and in the course of plaintiff's employment. The motion was overruled and an exception taken. The court in instructing the jury gave the following instruction among others:

"There was some testimony, you remember, about the State Industrial Accident law and the necessity of presenting claims, etc., so I will instruct you that the accident upon which this action is brought was not one arising out of or in the course of the plaintiff's employment by the defendant; therefore, she would have no right to claim or receive compensation from the State Industrial Accident Commission, but her cause of action, if any, is against the defendant, Troy Laundry Company."

To this instruction an exception was taken.

At the beginning of the case there was a stipulation entered into between the counsel for the respective parties, that plaintiff and defendant were subject to what is commonly known as the Workmen's Compensation Law, Oregon Code 1930, § 49-1801 et seq., at the time of the accident. This stipulation was dictated into the record but was not carefully worded, and no doubt, there was an honest misunderstanding as to just what it meant. However, taking it as meaning that both parties were subject to the said act, do the facts show that the injury arose out of and in the course of her employment?

"If any workman while he is subject to this act and in the service of an employer who is thus bound to contribute to the industrial accident fund shall sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means, he or his beneficiaries or dependents, if the injury result in death, shall receive compensation * * *": Oregon Code 1930, § 49-1827.

"The words are used conjunctively and, therefore, both elements must coexist for neither alone is sufficient": Blair v. StateInd. Acc. Comm., 133 Or. 450 (288 P. 204); Brady v. OregonLumber Co., 117 Or. 188 (243 P. 96, 45 A.L.R. 812); Larsen v.State Ind. Acc. Comm., ante, p. 137 (295 P. 195).

"* * * It is sufficient to say that an injury is received ``in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ``out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ``out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence": In Re McNicol et al., 215 Mass. 497 (102 N.E. 697, L.R.A. 1916A, 306).

It would be useless to attempt an analysis of the many cases which have been decided by the courts of last resort of the different states touching the point at issue in the instant case, under the Workmen's Compensation Law. A careful analysis of them, however, shows that they all follow the general rule announced inCudahy Packing Co. v. Parramore, 263 U.S. 418 (44 S. Ct. 153,68 L. Ed. 366, 30 A.L.R. 532), which was an action for compensation for injuries to an employee received away from the employer's premises and at a railroad crossing. In passing upon it the court said:

"Whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case. The fact that the accident happens upon a public road or at a railroad crossing, and that the danger is one to which the general public is likewise exposed, is not conclusive against the existence of such causal relationship, if the danger be one to which the employee by reason of and in connection with his employment, is subject peculiarly or to an abnormal degree. * * *

"Here the location of the plant was at a place so situated as to make the customary and practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but by means of switches, was connected with it, and in principle it was as though upon the actual premises."

When plaintiff left her employer's building and reached a public street, on no business connected with her employer, she was a free agent and might choose to go hither or yon. She ceased to be a unit of her employer's force and became simply a unit of the general public. She was under no more restriction than any other member of the general public using that part of the street. She could have selected her way (Cudahy Packing Co. v.Parramore, supra); she could have turned north one-half a block, and proceeded either easterly or westerly on Pine street; or she could have immediately crossed the street and used the easterly sidewalk. She may not have chosen the safest way, but her choice did not in any way arise out of and in the course of her employment, nor was it peculiarly induced thereby. If she was injured by the negligence alleged in her complaint, it was a risk to which the general public was equally exposed. No part of the street was provided by her employer, but by the public, and not especially for the use of her employer's business, but for the public generally. It was a risk arising from her choice of place of residence as much as from her employment. It was the same risk that every other member of the public who used that part of Eleventh street in going to and coming from their homes and places of employment, or for other purposes. There was no invitation, either expressed or implied, on the part of her employer, to her to use the west sidewalk of Eleventh street (Cudahy Packing Co. v. Parramore, supra). The way she selected was not contemplated in her contract of employment: Lamm v. Silver Falls Timber Co., 133 Or. 486 (277 P. 91, 286 P. 527, 291 P. 375).

In this last case cited, there is an extensive review of the many authorities covering the subject, but they all revert to and come squarely within the principles announced by the United States Supreme Court in Cudahy Packing Co. v. Parramore, supra. It would serve no useful purposes to again analyze and show how the principles therein announced were applied to the different facts and circumstances of the many different cases cited.

It is sufficient to say that under the facts and circumstances of this particular case, and the principles of law applicable thereto, the injury complained of "did not arise out of and in the course of her employment." Finding no error the judgment is affirmed.

BEAN, C.J., BROWN and RAND, JJ., concur.

ROSSMAN, BELT and KELLY, JJ., dissent.