Hafer Washed Coal Co. v. Industrial Commission

Mr. Justice Farmer

delivered the opinion of the court:

This case comes to this court on a writ of error allowed to review the judgment of the circuit court approving and confirming an award made Fred Damron under the Workmen’s Compensation act. Damron was an employee of plaintiff in error, and on November 29, 1918, while driving a pit-car hauling timbers in plaintiff in error’s mine, he was caught between the car and low-hanging coal and his left collar bone broken and shoulder bruised. It is admitted the parties were under the Compensation act and that Damron’s wages as'timberman and eager were $5 per day and that of a trapper $4.75. A hearing was had before an arbitrator March 19, 1919, and Damron was awarded $13 per week for five and two-sevenths weeks, covering the period of total incapacity, which was paid. He was awarded the further sum of $13 per week for sixty-six and two-thirds weeks under paragraph (e) of section 8 for 33% Per cent permanent loss of the use of the left arm.

Three points are relied úpon by plaintiff in error for a reversal of the award: (1) Because defendant in error, Damron, was permitted, over objection, to testify that the injury had caused the loss of one-third the use of his left arm; (2) the award is not authorized by the statute under which it was made;. (3) the injury did not'arise out of and in the course of the employment.

Treating the questions in the reverse order they are presented in the brief, we do not think the claim that the injury did not arise out of and in the course of the employment is well founded. There is no conflict in the testimony on this question. Damron’s employment was that of eager, and his duties also were to act as timberman when so directed. On the day of the injury he, another employee named Harris and a man named Arnold, who was driver of a mule in hauling pit-cars, were directed by the assistant mine manager to go to the “branch” and get some timbers or props and take them 150 or 200 feet to the.place where it was desired to use them. They proceeded to the place where the timbers were, loaded them on the car and started to haul them to the place directed. The driver, Arnold, was on the rear of the car and Damron on the front. Arnold asked Damron to drive the mule, which he proceeded to do and was caught by some low-hanging coal and his left collar bone broken. To drive mules hauling cars was not among the duties Damron was employed to perform, and plaintiff in error insists that he had stepped outside his employment to do something he was not required or expected to do when injured, and therefore the injury did not arise out of the employment. The assistant mine manager, it is true,' did not direct Damron to drive the mule. His orders to the men were to- get the timbers and haul them to the place designated. This required the timbers to be loaded on the car and then driven to the place desired. The mere fact that Damron, being on the front end of the car, was requested to, and did, drive the mule, was not such a departure from the work he was directed to do at the time as would justify holding that the injury did not arise out of and in the course of his employment. He was assisting in the execution of the order of the assistant mine manager to load the timbers on the car and move them to the place needed, and his injury occurred while obeying that order. That it may have been more convenient in expediting the order for Damron to drive the mule the 150 or 200 feet the timbers were to be moved, and for that reason he did so, would not justify holding that he was on that account not entitled to compensation;. It was not such a departure from the line of Damron’s employment as was held in Dietzen Co. v. Industrial Board, 279 Ill. 11, and subsequent cases, would place him outside the protection of the act when injured. Hartz v. Hartford Faience Co. 90 Conn. 539. See, also, Sunnyside Coal Co. v. Industrial Com. 291 Ill. 523, and cases cited.

The award of $13 per week for a period of sixty-six and two-thirds weeks was made under paragraph (e) of section 8 of the Workmen’s Compensation act, “for the reason that the injuries sustained caused 33^ per cent permanent loss of the use of the left arm.” We think, if the facts justified it, the award was authorized under clause 17 of paragraph (e) of section 8.

It is also insisted that the finding of the proportion of loss of use of the arm is based on incompetent evidence. Damron testified before the arbitrator, over the objection of plaintiff in error, that the loss of the use of his arm he believed to be one-third, and it is insisted that under Peabody Coal Co. v. Industrial Com. 289 Ill. 449, and International Coal Co. v. Industrial Com. 293 id. 524, the award should be reversed. We do not think the error complained of would justify reversal. In the last case cited it was said: “It is competent to prove conditions, such as the comparative ability of the applicant to do certain things in the use of the injured member before and after the accident, as well as .any other fact which would enable the commission to draw an inference as to the ultimate fact to be determined.” Damron was examined and testified fully before the arbitrator as to the effect of the injury on the use of his arm, was asked to and did illustrate during direct and cross-examination how the use of his arm was interfered with, by various movements he could or could not make. He also exhibited to the arbitrator, and again to the Industrial Commission at the hearing on review, his injury, which was inspected and examined by the arbitrator and commission. Independently of his testimony that he believed the loss of use of his arm was one-third, his testimony tended to show that he had sustained loss of the use of the arm to that extent, and the fact that the injury was exhibited to and examined by the triers of facts is also entitled to some weight.

We would not be authorized to reverse the judgment for the errors complained of, and it is affirmed.

Judgment affirmed.