Texas Compensation Insurance Co. v. Matthews

504 S.W.2d 545, 1973 Tex. App. LEXIS 2036
CourtCourt of Appeals of Texas
DecidedDecember 6, 1973
Docket18233
StatusPublished
Cited by5 cases

This text of 504 S.W.2d 545 (Texas Compensation Insurance Co. v. Matthews) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Compensation Insurance Co. v. Matthews, 504 S.W.2d 545, 1973 Tex. App. LEXIS 2036 (Tex. Ct. App. 1973).

Opinions

GUITTARD, Justice.

This workmen’s compensation case was tried without a jury on an agreed statement of facts. The sole question in the trial court was whether plaintiff’s injuries were sustained in the course of her employment. The trial court held that they were, and we affirm.

Plaintiff was injured on two occasions when crossing a street on the way from her parking lot to her place of employment. She was employed by Southwestern Bell Telephone Company at its building on the southeast corner of Haskell and Bryan Streets in Dallas. Normally she had no occasion to cross Bryan Street on her way to work. She customarily parked her car in a private lot on the south side of Bryan Street, east of the telephone company’s property, and walked west along the public sidewalk on the south side of Bryan Street to the building entrance. Several months before she was injured, the telephone company had engaged a contractor to make extensive improvements to its building. The [547]*547contract required the contractor to “take every measure to protect all persons and property . . . from injury arising out of performance of the work.” In accordance with this requirement, the contractor had erected a barricade enclosing the sidewalk adjacent to its building and the south ten feet of the street. The barricade extended from the building entrance to a point thirty-seven feet east of the telephone company’s east boundary. On the east end of the barricade the contractor had posted two signs, which read as follows:

Sidewalk Closed For Your Protection Please Cross Street Thank you Danger Keep Out Construction

Also at the east end of the barricade was a gate on which the following sign appeared:

This Entrance Only For Employees Suppliers And Sub-Contractors (Including Dee Brown Masonry, Inc.) Of Henger Construction Co.
Bell System Employees And Members Of The General Public On Business With The Bell System — Use Main Entrance at 4100 Bryan Street

Within a few feet of these signs was a crosswalk marked by the city for pedestrians to use in crossing Bryan Street. After erection of the barricade, plaintiff had used this crosswalk to cross to the north side of Bryan Street. She would then proceed west along the sidewalk on the north side of Bryan Street to the corner of Has-kell Avenue, then south across Bryan Street, and finally east along a covered walkway to the entrance of the building. Both of plaintiff’s injuries resulted from falls when she was crossing to the north side of Bryan Street on the crosswalk near the east end of the barricade, the first when she stepped off the curb onto some debris, and the second when she slipped on some grease in the middle of the street.

Our question is whether these injuries are within the coverage of the workmen’s compensation law. Tex.Rev.Civ. Stat.Ann., art. 8309, § 1 (Vernon’s 1967) defines “injury sustained in the course of employment” to include “injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Under this definition, an injury received while going to or returning from the place of employment is not, as a general rule, an injury sustained in the course of employment because such an injury is usually a consequence of risks and hazards to which all members of the traveling public are subject rather than risks having to do with and originating in the work or business of the employer. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963). This “going- and-coming rule” is subject to several exceptions for cases in which the risk is considered to have originated in the work or business of the employer. One of these exceptions is the case of an injury sustained at a place intended by the employer as a means of access to the place of employment and so closely related to the employer’s premises as to be fairly treated as a part of the premises. Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922); Kelty v. Travelers Ins. Co., 391 S.W.2d 558 (Tex.Civ.App.— Dallas 1965, writ ref’d n. r. e.).

Although we have found no decision holding an injury sustained in a public street on the way to or from work to be within the access exception, in Kelty v. Travelers Ins. Co., supra, an injury on a public sidewalk adjacent to the employer’s building was held to be within this exception, since the employer had assumed responsibility for the sidewalk so as to make it in effect a part of its premises. In oth[548]*548er cases falls on public sidewalks on the way to or from work have been held covered by workmen’s compensation laws. Heacker v. Southwestern Bell Telephone Co., 270 F.2d 505 (5th Cir. 1959); Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932); Hammond v. Great Atlantic & Pacific Tea Co., 56 N.J. 7, 264 A.2d 204 (1970). The access exception has also been held to cover injuries on adjacent railroad rights of way customarily used by employees going to and from work. Texas Employers Ins. Ass’n v. Anderson, 125 S. W.2d 674 (Tex.Civ.App. — Dallas 1939, writ ref’d) ; Hunt v. Allis-Chalmers Mfg. Co., 445 S.W.2d 400 (Mo.App.1969).

Defendant argues that the access exception to the going-and-coming rule applies only where the way traveled by the employee is (1) the only way to and from work, and (2) not traveled by the public generally. In support of this argument defendant cites Viney v. Casualty Reciprocal Exchange, 82 S.W.2d 1088 (Tex.Civ.App. —Eastland 1935, writ ref’d) and Texas Employers’ Ins. Ass’n v. Clauder, 431 S. W.2d 579 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.). These decisions cannot properly be interpreted as controlling authority for restricting the access exception so narrowly. Viney involved an injury to an employee who was crossing a neighbor’s pasture on horseback at some unspecified distance from the gin where he worked. In applying the going-and-coming rule, the Eastland Court of Civil Appeals recognized, but held inapplicable, certain exceptions, including a case “where the way traveled must necessarily be traveled as the only way to and from work, and is not traveled by the public generally.” The court’s recognition of that kind of case as falling within an exception to the going- and-coming rule is not equivalent to a holding that the access exception must be limited to that situation. Clauder is similarly inconclusive on this point. It involved an injury on a public road half a mile from the employer’s premises.

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Related

Ross v. Texas One Partnership
796 S.W.2d 206 (Court of Appeals of Texas, 1990)
Texas Compensation Insurance Co. v. Matthews
519 S.W.2d 630 (Texas Supreme Court, 1974)
Texas Compensation Insurance Co. v. Matthews
504 S.W.2d 545 (Court of Appeals of Texas, 1973)

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Bluebook (online)
504 S.W.2d 545, 1973 Tex. App. LEXIS 2036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-compensation-insurance-co-v-matthews-texapp-1973.