Wilson Berger Coal Company v. Brown

3 S.W.2d 199, 223 Ky. 183, 1928 Ky. LEXIS 298

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 17, 1928
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Clay

Affirming.

George Brown, an employee of the Wilson Berger Coal Company, who was ruptured by a fall over a stone lying in the road leading over the company’s premises, was denied compensation by the Workmen’s Compensation Board on the ground that the accident occurred on a public highway and not in the course of his employment. On appeal to the Harlan circuit court the order dismissing bis claim was set aside and Brown was awarded compensation. The Wilson Berger Coal Company appeals.

Appellant had leased a large body of land in Harlan county for the purpose of operating a coal mine, and had constructed a coal camp thereon. The coal tipple was located in the camp, and nearby were the houses which had been constructed by appellant for the use of its' miners. Appellee worked on the tipple, and was living in one of these houses which he had leased from appellant. Leading from the tipple through the camp is a road. While returning from the tipple to his home appellee stumbled over a rock in the road and sustained an injury resulting in a hernia. The uncontradicted evidence shows that the road on which the appellee was injured was not a state or county highway. On the con trary, it was a road built by tbe company on tbe leased premises for the convenience of its employees and persons having business with tbe company. At times tbe road was also used by tbe general public. Neither tbe state nor tbe county contributed anything to tbe building of tbe road or exercised any jurisdiction over tbe road.

While it is true that findings of fact by tbe Workmen’s Compensation Board, if supported by competent evidence, are conclusive, and not subject to review by tbe courts (Hagan v. Mason-Hanger Construction Co., 198 Ky. 326, 248 S. W. 896), it is also tbe rule that where there is no issue of facts, or tbe facts are undisputed, then tbe question on tbe facts is one of law, and tbe finding of tbe board is a finding of law subject to review (Ruscb v. Louisville Water Co., 193 Ky. 698, 237 S. W. 389). Here there is no conflict in tbe evidence, and not a single fact tending to show that at tbe time of tbe accident appellee bad left appellant’s premises and was on a public highway. On tbe contrary, be was on a road that appellant bad constructed on its own premises for its own convenience and for tbe convenience of its employees and persons having business with tbe company. Tbe public authorities bad never accepted or exercised any control over tbe road, and tbe mere fact that it was used occasionally by tbe general public did not destroy its character as a private road intended primarily for tbe use of its employees and those having business with tbe company.

There can be no doubt that an employee, while going to, or returning from, bis place of work along a road leading over bis employer’s premises, and built and intended for bis use, is still in tbe course of bis employment, and if be is injured while so traveling, tbe accident is one arising out of and in tbe course of bis employment. Harlan Gas Coal Co. v. Trail, 213 Ky. 226, 280 S. W. 954; De Constantin v. Public Service Commission, 75 W. Va, 32, 83 S. W. 88, L. R. A. 1916A, 329; Nieman v. Feldman Milk & Cream Co., 2 Leading Decisions (1947-1919) W. C. B. 35; L. & N. R. Co. v. Walker’s Adm’r, 162 Ky. 209, 172 S. W. 517. We therefore conclude that tbe circuit court did not err in awarding appellee compensation.

Judgment affirmed.