Bountiful Brick Co. v. Industrial Commission ( 1926 )

This is a proceeding, under the Workmen's Compensation Act, to review an award of compensation made by the Industrial Commission to the dependents of Nephi Giles, an employee of the Bountiful Brick Company, who was struck and instantly killed on June 17, 1925, by an electric train operated by the Bamberger Electric Railroad Company, while crossing its track on his way to work.

The employer and its insurer, as plaintiffs here, complain of the award and contend that the conclusion of the Industrial Commission that the employee was killed by an accident, arising out of or in the course of his employment, is not supported in fact or in law. This is the sole question for decision. There is no dispute in the evidence.

The employer operated a brick-making plant at Bountiful, Utah, where the deceased was employed as a fireman. The brick-making plant is situated on the west side of and adjoining the Bamberger Electric Railroad which runs north and south. A switch or siding of the railroad extends into the plant. East of the railroad track is the main settled portion of the city of Bountiful. So far as shown by the evidence, all of the employees of the Brick Company resided east of the railroad track. It was therefore necessary to cross over the railroad track in going to and returning from their work. The right of way of the railroad opposite the brick plant was fenced with wire fences. On the west side and between the right of way and the brick plant there was an opening in the fence between two posts set a few feet apart. The employer's manager testified that men coming from both north and south entered the brick plant through this opening. There was evidence that this was the general point of entrance to and exit from the plant by all employees who resided east of the railroad track. There was no evidence that any employee ever entered at any other point. In going to the plant, the employees approached the opening in the fence from various directions — some from the north, others from the south, and still others from the east who crawled through the fence on the east side of the railroad right of way. They all, however, were required to and did either go upon or cross the railroad track opposite or near the opening in the fence, in order to get to the plant. That this was the customary route to and from the brick plant of the employees and that the employer had full knowledge thereof is well established by the evidence.

The deceased employee lived about 1 1/2 miles southeast of the plant. To get to his work, he, of necessity, must cross the railroad track. He had been employed at the plant for several years, and according to the evidence had followed the route above described in going to and from his work. It was while he was crossing the railroad track opposite the opening in the fence, on his way to work, and when within 30 feet of the employer's premises that he was killed. There is a public road, called the Burns' road, which runs east and west and 1 across the railroad track, at a point about 200 yards south of the brick plant. This road extends west from the railroad track and connects with a public street which runs north and along the west side of the employer's premises. Access to the brick plant from the south side is cut off by a deep ditch, so that, in going to the brick plant along the route of the Burns' road and the public street, it is necessary to travel around to the west side of the employer's premises and then east to the brick plant. This route was available to the deceased employee, but was about one-half mile greater in distance than the one used by him and other employees. There was no testimony that any employee ever traveled this route in going to or returning from his work. The main contention made by the plaintiffs is that there was a route or way available to the employee along the Burns' road and the public street, which, although greater in distance, was less hazardous because the crossing of the railroad track was a public one where the trains must be operated with greater care to avoid accidents and injuries; that the employee by selecting the shorter route, which traversed the private right of way of the railroad, thereby exposed himself to a greater hazard, and one not necessarily connected with or contemplated by his employment.

In Cudahy Packing Co. v. Ind. Com., 60 Utah, 161,207 P. 148, 28 A.L.R. 1394 (affirmed 263 U.S. 418, 44 S. Ct. 153,68 L. Ed. 366, 30 A.L.R. 532) commonly referred to as the Parramore Case, an award of compensation on account of the death of an employee, who was struck and killed while necessarily crossing a railroad track on his way to work, and just before he had reached his employer's premises, was sustained. The proximity of the railroad track to the employer's premises and 2 the necessity of crossing the track daily, in going to and from work, were in the main reasons for the conclusion in that case that the employment involved peculiar and abnormal exposure to a common peril which was annexed as a risk incident to the employment. The only difference seen in the relevant circumstances of the Parramore Case and the case at bar is that in the former the employee had no other choice than to go over the tracks at the place where he was killed, while in this case the employee could have selected the longer route and crossed the track on a public road, where, it is urged, there was less danger. But we think this not a sufficient reason for distinguishing the latter case from the former. In essential principles, the cases are the same. The employee in the case at bar, in crossing the track at the place where he was killed, did what any reasonable person would do under similar circumstances. The route taken was the most direct and shortest and was used by other employees, with the knowledge of the employer who made no objection. The fact that the opening in the fence was allowed by the employer to remain open and be used, in view of the situation and surrounding circumstances, amounted to an invitation on his part to his employees to use it. With this situation, what would be the reasonable and necessary expectation as to the way employees would get to and from their work? Can it be said that the employment of the deceased, under the circumstances, did not necessarily contemplate that he would go to and from his work according as he was invited by the situation and as other employees did? Of course, it was possible for the employee to have chosen the longer and perhaps the less dangerous route, but, under the circumstances, no reasonable person would expect him to do so. He traveled over the route which was generally used by other employees — the natural, practical, customary route. That his employment contemplated and included in itself the manner of so going to and from his work is, we think, a fair and necessary conclusion. The employee, in crossing the track at any time, was exposed to a peril which is common to all, but by virtue of his employment he was required to cross the track regularly and continuously, thus being peculiarly and abnormally exposed to a common peril. It is the greater degree of exposure to the peril which arises as an incident to the employment which sustains the causal relation between the employment and the accident.

We think the case is within the principle decided in the Parramore Case, and should be ruled accordingly.

The award is affirmed.

GIDEON, C.J. and FRICK and THURMAN, JJ., concur.