Barnhill, J.
The hearing Commissioner, through a very interesting and persuasive process of reasoning, comes to the conclusion that the deceased was for all practical purposes on the premises of his employer; that his employment involved unusual risks; and that, therefore, the injury arose out of and in the course of the employment. The Full Commission supplements this conclusion by finding that he was in the ambit of his employment and affirms. Thus, it affirmatively appears that the award was not made upon the theory that the deceased had begun his employment for the day or was actually engaged in the performance of any duty of his employment, or was about his master’s business at the time of the injury. Instead, it is based upon the theory that he was on the premises of his employer at the time or was in such close proximity to such premises “that he was for all practical effect on the defendant employer’s premises,” or, at least, he had reached the ambit of his employment. If sustainable at all, the award must be sustained on this theory, for there is no evidence in the record that the deceased, on the occasion of his injury, had undertaken to direct traffic or to perform any other duty of his employment.
On the contrary, the uncontradicted evidence tends to show that he was at the time on his way to his place of employment to report for work. He alighted from the bus that had carried him to a point in front of and across the highway from his gate or station. He continued on foot across the highway immediately behind the bus to relieve the guard then on duty. He saw an oncoming car, hesitated and then attempted to cross the road ahead of the car. He was on the public highway and was hit while he was still on the hard surface.
An injury received by.an employee while going to and from his work is not compensable unless he is being transported by the employer under contract of employment.
Dependents of Phifer v. Dairy, 200
N. C., 65, 156 S. E., 141;
Davis v. Mecklenburg County,
214 N. C., 469, 199 S. E., 604;
Bray v. Weatherly & Co.,
203 N. C., 160, 165 S. E., 332;
Smith v. Gastonia,
216 N. C., 517, 5 S. E. (2d), 540;
Lassiter v. Tel. Co.,
215 N. C., 227, 1 S. E. (2d), 542;
Bourke’s Case,
129 N. E. (Mass.), 603;
Padgorski v. Kerwin,
175 N. W. (Minn.), 694;
Nesbitt v. Twin City Forge & Foundry Co.,
177 N. W. (Minn.), 131; Schneider, Workmen’s. Compensation Law (2d), 769, sec. 265. The findings of fact bring this case within the general rule.
Had the deceased been injured while directing traffic under the instructions of his superior it would be immaterial whether he was on or off the premises of his employer. The mere fact, however, that at times the performance of his duties required him to go upon the highway and to assume the extra risk occasioned thereby does not justify or support the conclusion that the public highway was a part of the premises. Nor does the fact that employees of defendant constituted the great majority of those who used the highway as such alter this conclusion. Neither is it important that the operator of the car that struck deceased was also an employee of defendant. At the time he was on his way to get breakfast before reporting for work. Though, generally speaking, he was an employee he was then merely a member of the traveling public using the highway as such.
Even if we accept the finding or conclusion of the Commission that the deceased was on the premises of his employer and within the ambit of his employment the injury and death is not compensable.
Under our statute, ch. 120, Public Laws 1929, as amended, to sustain an award of compensation it must be made to appear that the injury “arose out of” and “in the course of” the employment. These terms have been so often defined by this Court that they, now have an established and well recognized meaning.
Plemmons v. White’s Service, Inc.,
213 N. C., 148, 195 S. E., 370, and cases cited;
McGill v. Lumberton,
215 N. C., 752, 3 S. E. (2d), 324;
Lockey v. Cohen, Goldman & Co.,
213 N. C., 356, 196 S. E., 342;
Robbins v. Hosiery Mills,
220 N. C., 246, 17 S. E. (2d), 20. Mere repetition would serve no good purpose.
The Act does not contemplate compensation for every injury an employee may receive during the course of his employment but only those from accidents arising out of, as well as, in the course of employment. Where an injury cannot fairly be traced to the employment as a contributing proximate cause, or comes from a hazard to which the workman would have been equally exposed apart from the employment or from a hazard common to others, it does not arise out of the employment.
Lockey v. Cohen, Goldman & Co., supra; Walker v. Wilkins, Inc.,
212 N. C., 627, 194 S. E., 89;
Marsh v. Bennett College,
212 N. C., 662, 194 S. E., 303;
Plemmons v. White’s Service, Inc., supra.
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.
Lochey v. Cohen, Goldman & Co., supra.
That the employee at the time of the injury is on his employer’s premises, that his employment involved unusual hazards, and that he was within the compass of his employment are important facts. Yet, they .are not alone sufficient to justify or support the conclusion that the injury arose out of the employment or to support an award.
McNeill v. Construction Co.,
216 N. C., 744, 6 S. E. (2d), 491;
Plyler v. Country Club,
214 N. C., 453, 199 S. E., 622;
Plemmons v. While’s Service, Inc., supra; Walker v. Wilkins, supra; Marsh v. Bennett College, supra; Bain v. Travora Mfg. Co.,
203 N. C., 466, 166 S. E., 301.
Conceding
arguendo
that deceased was vested with all the authority of .a traffic officer,
Davis v. Mecklenburg County, supra,
and
McKenzie v. Gastonia, ante,
328, are, in principle, directly in point.
In the
Davis case, supra,
the employee was a rural policeman. He was within his county — the ambit of his employment. He had the right, if occasion arose, to investigate crime, to regulate traffic or to make arrests. He was, however, at the time on his way to report for active duty, and he suffered death from a hazard incident to travel on a public road. Compensation was denied.
In the
McKenzie case,
the employee was a city policeman injured while in the city on his way to report for duty. He likewise had authority to quell a disturbance, to make arrests, or to perform any other duty of his employment. His injury, however, arose out of a hazard common to those who use a public highway and compensation was denied.
The employee’s journey had not been completed. He was still on his way to work. He was master of his own movements. The hazard created by traffic on the highway under the circumstances of this case cannot fairly be traced to the employment. It cannot be said that it was, at the time and place and under the circumstances disclosed, a natural incident of the work.
Free access — add to your briefcase to read the full text and ask questions with AI
Barnhill, J.
The hearing Commissioner, through a very interesting and persuasive process of reasoning, comes to the conclusion that the deceased was for all practical purposes on the premises of his employer; that his employment involved unusual risks; and that, therefore, the injury arose out of and in the course of the employment. The Full Commission supplements this conclusion by finding that he was in the ambit of his employment and affirms. Thus, it affirmatively appears that the award was not made upon the theory that the deceased had begun his employment for the day or was actually engaged in the performance of any duty of his employment, or was about his master’s business at the time of the injury. Instead, it is based upon the theory that he was on the premises of his employer at the time or was in such close proximity to such premises “that he was for all practical effect on the defendant employer’s premises,” or, at least, he had reached the ambit of his employment. If sustainable at all, the award must be sustained on this theory, for there is no evidence in the record that the deceased, on the occasion of his injury, had undertaken to direct traffic or to perform any other duty of his employment.
On the contrary, the uncontradicted evidence tends to show that he was at the time on his way to his place of employment to report for work. He alighted from the bus that had carried him to a point in front of and across the highway from his gate or station. He continued on foot across the highway immediately behind the bus to relieve the guard then on duty. He saw an oncoming car, hesitated and then attempted to cross the road ahead of the car. He was on the public highway and was hit while he was still on the hard surface.
An injury received by.an employee while going to and from his work is not compensable unless he is being transported by the employer under contract of employment.
Dependents of Phifer v. Dairy, 200
N. C., 65, 156 S. E., 141;
Davis v. Mecklenburg County,
214 N. C., 469, 199 S. E., 604;
Bray v. Weatherly & Co.,
203 N. C., 160, 165 S. E., 332;
Smith v. Gastonia,
216 N. C., 517, 5 S. E. (2d), 540;
Lassiter v. Tel. Co.,
215 N. C., 227, 1 S. E. (2d), 542;
Bourke’s Case,
129 N. E. (Mass.), 603;
Padgorski v. Kerwin,
175 N. W. (Minn.), 694;
Nesbitt v. Twin City Forge & Foundry Co.,
177 N. W. (Minn.), 131; Schneider, Workmen’s. Compensation Law (2d), 769, sec. 265. The findings of fact bring this case within the general rule.
Had the deceased been injured while directing traffic under the instructions of his superior it would be immaterial whether he was on or off the premises of his employer. The mere fact, however, that at times the performance of his duties required him to go upon the highway and to assume the extra risk occasioned thereby does not justify or support the conclusion that the public highway was a part of the premises. Nor does the fact that employees of defendant constituted the great majority of those who used the highway as such alter this conclusion. Neither is it important that the operator of the car that struck deceased was also an employee of defendant. At the time he was on his way to get breakfast before reporting for work. Though, generally speaking, he was an employee he was then merely a member of the traveling public using the highway as such.
Even if we accept the finding or conclusion of the Commission that the deceased was on the premises of his employer and within the ambit of his employment the injury and death is not compensable.
Under our statute, ch. 120, Public Laws 1929, as amended, to sustain an award of compensation it must be made to appear that the injury “arose out of” and “in the course of” the employment. These terms have been so often defined by this Court that they, now have an established and well recognized meaning.
Plemmons v. White’s Service, Inc.,
213 N. C., 148, 195 S. E., 370, and cases cited;
McGill v. Lumberton,
215 N. C., 752, 3 S. E. (2d), 324;
Lockey v. Cohen, Goldman & Co.,
213 N. C., 356, 196 S. E., 342;
Robbins v. Hosiery Mills,
220 N. C., 246, 17 S. E. (2d), 20. Mere repetition would serve no good purpose.
The Act does not contemplate compensation for every injury an employee may receive during the course of his employment but only those from accidents arising out of, as well as, in the course of employment. Where an injury cannot fairly be traced to the employment as a contributing proximate cause, or comes from a hazard to which the workman would have been equally exposed apart from the employment or from a hazard common to others, it does not arise out of the employment.
Lockey v. Cohen, Goldman & Co., supra; Walker v. Wilkins, Inc.,
212 N. C., 627, 194 S. E., 89;
Marsh v. Bennett College,
212 N. C., 662, 194 S. E., 303;
Plemmons v. White’s Service, Inc., supra.
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.
Lochey v. Cohen, Goldman & Co., supra.
That the employee at the time of the injury is on his employer’s premises, that his employment involved unusual hazards, and that he was within the compass of his employment are important facts. Yet, they .are not alone sufficient to justify or support the conclusion that the injury arose out of the employment or to support an award.
McNeill v. Construction Co.,
216 N. C., 744, 6 S. E. (2d), 491;
Plyler v. Country Club,
214 N. C., 453, 199 S. E., 622;
Plemmons v. While’s Service, Inc., supra; Walker v. Wilkins, supra; Marsh v. Bennett College, supra; Bain v. Travora Mfg. Co.,
203 N. C., 466, 166 S. E., 301.
Conceding
arguendo
that deceased was vested with all the authority of .a traffic officer,
Davis v. Mecklenburg County, supra,
and
McKenzie v. Gastonia, ante,
328, are, in principle, directly in point.
In the
Davis case, supra,
the employee was a rural policeman. He was within his county — the ambit of his employment. He had the right, if occasion arose, to investigate crime, to regulate traffic or to make arrests. He was, however, at the time on his way to report for active duty, and he suffered death from a hazard incident to travel on a public road. Compensation was denied.
In the
McKenzie case,
the employee was a city policeman injured while in the city on his way to report for duty. He likewise had authority to quell a disturbance, to make arrests, or to perform any other duty of his employment. His injury, however, arose out of a hazard common to those who use a public highway and compensation was denied.
The employee’s journey had not been completed. He was still on his way to work. He was master of his own movements. The hazard created by traffic on the highway under the circumstances of this case cannot fairly be traced to the employment. It cannot be said that it was, at the time and place and under the circumstances disclosed, a natural incident of the work. It was not created by the employer. It did not arise out of the exposure occasioned by the nature of the employment. It was neither an ordinary nor an extraordinary risk directly or indirectly connected with the services of the employee. On the contrary, any other person undertaking to cross a public highway under the same or similar circumstances would be subjected to the identical hazard encountered by him.
It is conceded that if deceased had been injured 100 yards down the road the injury would not be compensable. That he was instead within 30 or 40 feet of his destination does not alter the purpose of his going or warrant a different conclusion.
We are aware that one witness testified deceased had reported to his post. This witness, however, repeatedly stated thereafter that he was not present but that he received his information from another. Hence, this
evidence is hearsay. Furthermore, it is in conflict with all the competent testimony.
The hearing Commissioner cited and relied on certain cases from other jurisdictions. Decisions of other courts are always helpful. When, however, a case involves the interpretation of a local statute first consideration must be given to the difference, if any, in the wording contained in the statute under consideration.
The Utah Act makes injuries arising out of or in the course of employment compensable. The disjunctive is used and courts of that State interpret “in the course of” to include “a reasonable margin of time and space necessary to be used passing to and from the place where work is to he done.” Hence, Utah cases on the question here presented are not authoritative or persuasive.
In
Bountiful Buick Co. v. Giles,
276 U. S., 154, 72 L. Ed., 507, the Court only decided that the Utah Workmen’s Compensation Act does not contravene the Due Process Law Clause of the Fourteenth Amendment.
Barnett v. Britline Cafeteria Co.,
143 Sou., 813 (Ala.), was decided by a divided Court and is in direct conflict with the decisions of this Court, which are controlling.
Freire v. Matson Navigation Co.,
109 Pac., 1022 (Cal.), is factually distinguishable. There the hazard was created by other employees of the company as such and not as members of society at large.
The facts in
Martin v. Metropolitan Co.,
189 N. Y. S., 467, are not at all similar. The claimant was using an elevator within the building where she worked which was furnished, in part, for the convenience of employees. She was injured when the operator started the elevator while she was in the act of getting off.
We conclude that the claimant has failed to bring her claim within the provisions of the Workmen’s Compensation Statute. The specific facts found are insufficient to sustain the conclusion that the injury resulting in death arose out of and in the course of the employment. Hence, the award must be vacated. To that end the judgment below is
Reversed.