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and three-quarters below the wrist joint diagonally across the hand to a point two and a half inches below the wrist joint, leaving the thumb entirely uninjured.
“8. It was mutually conceded by the parties, that, if appellee is entitled to anything, he is entitled to the maximum compensation of $10.00 a week.”
If a workman is injured while voluntarily doing something quite outside the scope of the work he is employed to do, it cannot well be said that such injury "arises out of and in the course of his employment.” This is illustrated by the old case of the boy who was engaged to hand balls of clay in moulds to a moulder, and was told not to touch the machinery; but having nothing to do for the moment, he did at• tempt to clean the machinery, and was injured. It was necessarily held that the injury did not "arise out of and in the course of his employment,” Lowe vs. Pearson, W. C. C. 5. It was also held that the injury did not arise out of and in the course of the employment where a girl left her work to start an engine when the person whose particular duty it was to do so happened for the moment to be absent, Losh v. Evans & Company, 5 W. C. C. 17.
In other words the work which one is employed to do, when construed in a reasonably broad and comprehensive way does limit and mark out “his employment," within the meaning of the statute. Of course, the scope of such particular employment may be enlarged for the time being by the directions of some superior who has authority; and in the case of an actual emergency it may be held that any reasonable attempt to preserve the employer's property is within the general lines of an employe's duty. But, ordinarily, the scope of a workman's employment is defined by the things he is employed to do, and the things reasonably and fairly incident thereto.
Notice must be taken that a factory of today usually includes within the field of its operations many fairly distinct lines of work, from that of the roustabout engaged in the ordinary labor that almost any one may perform, to that of the expert mechanic which can be done safely by those only with skill and experience. The difference between these various kinds of work was always recognized by the common law, and it was held to be negligence for the master to require of the servant, without warning and instructing him, the performance of work outside of and more dangerous than that which the latter had contracted to perform. Such classification of work exists in the very nature of things, and as much under the statute as at common law. Its recognition is required by any proper organization of a factory, not only for efficiency, but as well for the purpose of guarding against accident and injury. And if a workman, when there is no emergency, should, of his own volition, see fit to intermeddle with something entirely outside the work for which he is employed, he ought not to be allowed compensation upon the mere plea that he thought his act would be for the benefit of his employer. That plea may be of value under some circumstances, but it cannot authorize an employe to voluntarily take upon himself the performance of work for which he was not employed.
In the case at bar the crane, in connection with which the accident occurred, was located on beams some 15 feet above the floor where the claimant was required to work. It could be reached only by use of a ladder to be obtained and placed for that purpose, or by climbing upon a brace which was not intended for such use. Its location was as separate and distinct from the floor where the claimant worked as if it had been in another room, or in another building. The crane was operated by electricity, and 240 volts were required for that purpose. It was dangerous to get upon it, or to intermeddle with it, as is stated repeatedly in the testimony and is shown by the accident itself. And this the claimant must have known as well as anybody. Two experts were employed by the company for the particular purpose of repairing the cranes if they should get out of order.
It is expressly found by the Industrial Accident Board, and we are bound by the finding, that the claimant understood he was employed as a moulder, and in no other capacity; and that there was nothing in the occupation of a moulder which
would require him to go upon the crane for the purpose of repairing it should it be out of order. A more definite and explicit finding as to what was within the scope of his duties, and what was without such scope, could not well be made.
The Industrial Accident Board also finds that instructions had been given by the superintendent to the foreman to allow no one but the men designated for such work to go upon the crane, and that these instructions had been given to the moulders by the foreman. The superintendent testifies that one l'eason for these instructions was the safety of the moulders. It is true the Board also finds that the claimant could not speak nor fairly understand either English or the language of the foreman, but it makes no express finding as to whether the claimant did or did not actually and in fact understand these instructions. Whether the claimant really understood them or not, he certainly did understand from the foreman that he was to report to the machinist or to the electrician any defect in the operation of the crane, and if they could not be found that he should sit down or go home. This is found by the Board from his own testimony.
On the day of the injury the crane used by claimant in his work did not operate properly and he reported it to the machinist. It does not appear from the claimant's testimony that he had any difficulty in making the machinist understand the trouble with the crane. He says that he told the machinist that it was not good and that the brake was too loose. Thereupon the machinist got a ladder and climbed upon the crane to repair it. After the machinist had got upon the crane the claimant followed him up the ladder and also up on the crane. No communication whatever between the two had been attempted after the machinist had started up the ladder, and while the claimant was on the floor. In other words the claimant did not climb up to and upon the crane because of any failure to make the machinist understand anything he was trying to tell him at the time. What the claimant did, after getting upon the crane, was to point out to the machinist what claimant thought ought to be done in making the repairs. He did not, apparently, go up for the purpose of reporting the condition of the crane, but to suggest to the machinist what the latter ought to do to remedy the difficulty. The claimant appears to have fully understood the danger of being on the crane, because he says that as soon as he found the switch had not been opened he at once started to go down. In doing this he placed one hand upon the large wheel, when in some way the machinery was started, and his hand was crushed.
The very thing that the claimant attempted to do, was the very thing that the Industrial Accident Board has expressly found to have been outside the limits of his employment. The finding of the Board is—“There is nothing in the occupation of a moulder which would require him to go upon the crane for the purpose of repairing it should it be out of order, a machinist and an electrician being employed by appellant to make the necessary repairs. Appellee understood that he was employed as a moulder and in no other capacity.” The very thing he did do was to climb upon the crane, not for the purpose of reporting that it was out of order, but to direct the machinist in the performance of his duty. And he did this, well knowing the danger to which he was subjecting himself. In the face of the express findings of the Board, which, as we have said, are warranted by the evidence, it does not help claimant any that on several previous occasions also he had gone outside the limits of his employment by climbing upon the crane.
The orders allowing compensation must be reversed and set aside.
BROOKE, OSTRANDER, STONE and STEERE, JJ. concurred with PERSON, J.
BIRD, J. (Dissenting). The sixth finding of fact of the Industrial Accident Board was:
"While the machinist was up on the crane looking for the trouble, appellee not being able to make him fully understand in English, went up the ladder and got off where the machinist was, to point out to him where the trouble was.”
This finding of fact seems to me to be justified by the record. Claimant did not go up on the crane to repair the defect in violation of the rules. He went there merely to point out the defect which he was unable to describe in words to the machinist. To do so was to hasten the repair of the machine, which ordinarily would be to the advantage of both claimant and master. I am of the opinion that claimant's conduct should not be characterized as "intentional and wilful misconduct.” Neither am I of the opinion that we should hold that claimant, in going upon the crane, under such circumstances, was acting outside of the scope of his employment. The cases cited by Mr. Justice Person on this question were instances where the servant left his particular work and meddled with machinery with which he had nothing to do. The machine in the present case was operated by claimant. When it was out of repair his work stopped. He knew where the defect was; the machinist did not for the moment. In an attempt to point out the defect claimant was injured. His effort was made in furtherance of the master's business, and it should not deprive him of the award.
The finding of the Industrial Accident Board is affirmed. Kuhn, and MOORE, JJ. concurred with BIRD, J.