dissenting.
Beckerman had worked for Owosso for fourteen years. Some of the employees customarily drive away for lunch. They have done that for a long time. Within not over three or four minutes after Beckerman punched his time card going out for lunch, he was killed. He habitually ate his lunch at Prewitt’s cafe, three or four blocks from the plant.
The crossing where Beckerman was killed is in such close proximity to the log pile where he worked that for all practical purposes he was on the employer’s property at the time of the accident. He was only 20 or 30 feet from the place where he had piled the logs. Owosso actually uses the street not only as such, but as a part of its own property. The Owosso property extends from the Rock Island railroad on the south to the Missouri Pacific railroad on the north, a distance of approximately 300 feet. The railroads are adjacent to the Owosso property and in order for one to leave the Owosso plant he must cross either the Rock Island or Missouri Pacific railroad. Beckerman was crossing the Missouri Pacific tracks when he was killed. Owosso has large buildings on each side of the road between the two railroad tracks, and there is a large conveyor, which appears to be about 15 feet high., going across the road from the building on the west to the building on the east. Poles supporting the conveyor appear to be on the right of way of the so-called street. On the property east of the street there is a large derrick used in moving and piling logs. The center pole of this derrick is supported by guy wires that extend across the street. It also appears that the logs piled by Beckerman for his employer had been piled partially in the street. About half-way between the railroad tracks on the south and the railroad tracks on the north there is a very narrow bridge that will carry only one way traffic, indicating that the public in general does not use the street to any great extent.
The case at bar is clearly distinguishable from Johnson v. Clark, 230 Ark. 275, 322 S. W. 2d 72. In that case an employee was injured after the closing of the employer’s business for the night. The employee crossed the street where he sat in an automobile on private property, waiting for a taxicab. It was specifically pointed out by the court that “It was only by going out of his way to private property across the street that Clark happened to be at the spot where he was hurt.” He was injured when he stepped from the car into a slight depression in the ground. There was no hazard at all involved. There it was said: ‘ ‘ The trouble is that, as far as we can find, no reported case has ever extended the employer’s premises to include private property (a) that is separated from the employer’s premises by a public street, (b) that is not in any respect subject to the employer’s control, (c) that involves no peril except that of tripping on ground that is not perfectly smooth, and (d) that the employee can reach only by departing from the ordinary route to his home.” None of the specifically mentioned facts existing in the Johnson case is present in the case at bar. There the Court pointed out that no case could be found where an employee had been granted compensation under similar facts to the case under consideration at that time. But in the case at bar there are numerous cases having similar facts where compensation was awarded. Of course, the general rule is that an employee cannot recover compensation if injured while going or coming to or from work. But there are numerous exceptions, as was pointed out in the Johnson case: “The exceptions to the basic rule are perhaps too numerous to be readily listed, and new ones will arise, but each is founded upon a valid reason for bringing the situation within the protection that the legislature meant to afford the worker.” Following the Johnson case we failed to extend the rule in Davis v. Chemical Constr. Co., 232 Ark. 50, 334 S. W. 2d 697.
One of the valid exceptions to the rule is pointed out in Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637: “When the employee is injured while in close proximity to the place of business.” And this rule was clearly recognized in Bales, Admr’x. v. Service Club, 208 Ark. 692, 187 S. W. 2d 321. There Mrs. Bales was injured by slipping on the sidewalk before she actually reached the entrance to the employer’s place of business. Recovery was allowed, and this could have been only on the theory that she was on her way to work and in close proximity to her place of employment at the time she received the injury.
Actually there is no valid distinction between the case at bar and the leading case on the subject, Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 148, 68 L. Ed. 366, 30 A. L. R. 532. There, as in the case at bar, Parramore was killed when he was struck by a train while he was crossing a track in close proximity to his place of work. The Court pointed out that whether a given accident is so related or incident to the business as to be considered within the course of the employment of the one injured must depend on its own particular circumstances and that no exact formula can be laid down that will automatically solve every case. The Court said: “The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.” In addition the Court said: “An accident arises out of the employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind.” The Court further stated: “But the contention here, shortly stated, is that the accident was one which occurred off the premises of the employer on a public road, outside the hours of employment and while the employee was not engaged in any business of the employer; that it was not the result of any industrial risk but arose from a common peril to which the public generally was exposed; and that consequently liability is imposed arbitrarily and capriciously. ’ ’ An award was sustained in the Parramore case.
The Parramore case was followed by Bountiful Brick Co. v. Giles, 276 U. S. 154, 48 S. Ct. 221, 72 L. Ed. 507, 66 A. L. R. 1402. In that case Giles was killed while crossing the railroad tracks not at a regular crossing, and in fact it was not even necessary to cross the railroad tracks to get to his employment. But the tracks were in the immediate vicinity of the place of employment, although not on the employer’s property. There the Court said: ‘ ‘ And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. . . . There [speaking of the Parramore case], as here, it was necessary for the employees, in order to get to the place of work, to cross the tracks, and they were in effect invited by the employer to do so. The difference between the two cases is that in the former the crossing customarily used was entirely upon a public road, while here the way followed was in part along the railway tracks and by crossings within the railroad right of way wherever the employees upon their own volition might choose to go. The present case, though it comes nearer the border line, falls within the principle of the Parramore case. Since the only way of access to its brickyard from the east was across the railway tracks, the company necessarily contemplated the crossing of them by its employees.”
In Northwestern Fuel Co. v. Swanson, 197 Wis. 48, 221 N. W. 396, the employee was injured while riding a bicycle on a public road in close proximity to the place of work. Recovery was allowed.
In Guient v. Mathieson Chemical Corp., 41 So. 2d 493 (La. 1949), the court said: “The case involves the application of what has come to be known in our workmen’s compensation law as the ‘proximity rule.’ That rule relates to the right of an injured employee to recover compensation when he suffers a disability that results from an accident sustained by him which occurs at a public crossing which is in such close proximity to the premises of the plant at which he works as to constitute a necessary convenient passageway for the conduct of the employer’s business, and in principle therefore, may be said to be a part of the premises.” There the employee was crossing U. S. Highway 90, after having alighted from a bus. An award was allowed. The court said: “The highway afforded the only way of travel by which the employees reached the plant and since they are a necessary and integral part of the operation of the plant it is a logical deduction that, as a means of reaching their place of employment, it becomes a necessary convenient passageway for the conduct of the employer’s business, and this, notwithstanding the fact that the public generally is subjected to the same hazards as are the employees who have to cross it regularly in going to and coming from work. . . . The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.”
In Tinsman Manufacturing Co., Inc. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573, the Court quoted with approval from an English case, as follows: “ ‘In one sense anything a man does in connection with his own body is done for his own purpose: eating and drinking are illustrations; but these are nonetheless things a workman is perfectly entitled to do in the course of his employment. . . . “I think an accident befalls a man ‘in the course of’ his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.” ’ ”
Professor Larson at page 196 [§§ 15.12, 15.13] says: “Some courts have extended the ‘premises’ idea to areas which are not owned or even controlled by the employer, but which are so closely associated with it that they are in effect part of the premises. Such a test has been helpful in a number of cases, . . . The most striking illustration comes from Wisconsin, which interpreted the statutory phrase, ‘premises of the employer,’ to include the intersection of a railroad and a public highway. . . . The commonest ground of extension is that the off-premises point at which the injury occurred lies on the only route, or at least on the normal route, which employees must traverse to reach the plant, and that therefore the hazards of that route become the hazards of the employment. This general idea seems to have been accepted by the majority of jurisdictions in some degree.”
Professor Horovitz in his book on Workmen’s Compensation at page 161 says: “There is no reason in principle why states should not protect employees for a reasonable period of time prior to or after working hours and for a reasonable distance. . . .”
I think that according to the great weight of authority Beckerman was killed in such close proximity to his place of work that compensation should be awarded. In my opinion pictures of the scene of the accident reproduced herein sustain that view. The Compensation Commission specifically stated there was no dispute as to the facts. I believe if the Commissioners had felt that they could have found for the claimant under the law, they would have done so. But they erroneously construed the law to be such that when applied to the facts in the case no award could be made. The Commission fell into this same error in Bales, Admr’x. v. Service Club, 208 Ark. 692, 187 S. W. 2d 321, where there was no dispute as to the facts, and the Commission held there could be no recovery under the law. In reversing the Commission, Judge Prank Smith, speaking for the Court, said: “But in any and every case the sufficiency of the testimony to support the Commission’s finding, or for that matter the verdict of a jury, is not a question of fact, but one of law, which this court will review on appeal. We have, therefore, copied in extenso the lengthy statement of facts as agreed upon by counsel, in order that we may determine as a matter of law whether the ‘coming and going’ rule should be applied.” The Court held that the “coming and going” rule should not be applied in that case and reversed the order of the Commission denying compensation and ordered the Commission to make an award of compensation. I respectfully submit that the same thing should be done in the case at bar and I therefore dissent.
Johnson, J., joins in this dissent.[[Image here]]
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