dissenting:
Believing that the Commission’s decision is not against the manifest weight of the evidence, I respectfully dissent.
The evidence indicates that claimant was frequently required to work away from respondent’s home office. On this particular trip, in fact, his overnight stay was expressly authorized. While on this trip, as always, claimant used a company truck and company equipment, and the company paid his expenses.
The evidence also indicates that no restrictions were placed upon claimant and his coworker as to their activities after leaving the out-of-town job site and that, given this discretion, they decided to have a few drinks with their customer’s representative. The evidence is uncontroverted that one purpose of this socializing was to discuss the problems of the machine. Respondent admits that there is nothing unreasonable about claimant’s activities thus far. It concedes that a traveling ■ employee generally remains in the course of his employment from the time he leaves the employer’s premises until he returns and even during free time when engaged in reasonable activities incident to his employment, including socializing with customers. Respondent claims, however, that it could not reasonably foresee claimant’s injury. Respondent argues, “Under the circumstances of the employment obligation in this case, it is unreasonable that an employee who was required to be at the job promptly the next morning would: (1) refuse a ride back to the motel at approximately 1:10 [a.m.] when his companions left; (2) *** even consider walking a number of miles at 2:30 [a.m.] when in a city with which he was not familiar; (3) *** fail to explain his activity during a period of approximately one hour after leaving his companions in an establishment which was only a few blocks from the place of [the] accident; (4) *** be hanging from a railroad car by one or both hands without any explanation as to how or why he had assumed that position.” Respondent also points out, correctly so, that in deciding the “course of employment” issue, we must focus on the injury and not on whether claimant’s trip generally could be said to be in the course of his employment. See 1 A. Larson, Workmen’s Compensation sec. 14, at 4 — 1(1978).
Were I to agree with respondent’s interpretation of the evidence, I might be more inclined to accept its argument that the injury did not arise out of and in the course of claimant’s employment. The fact is, however, that (1) there is no evidence that claimant refused a ride back to the motel or that his companions definitely left at 1:10 a.m.; the testimony was that claimant declined his companions’ invitation to breakfast, and the estimates given as to the time that they left ranged from “shortly after” 1 a.m. to 1:30 or 1:45 a.m.; (2) there is nothing manifestly unreasonable about undertaking a walk of three miles, and the majority’s assertion that claimant shunned taxi service is without support in the record, as there is no evidence that a taxi was available at the time of the occurrence; (3) claimant admitted being lost, thereby explaining the lapse of time between leaving the bar and being hit by the train; and (4) the record does not indicate that claimant voluntarily “assumed” a hanging position on the side of the train.
Nor do I believe that the cases cited by respondent require a result different from that reached by the Commission. In U.S. Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 475, for example, the court’s decision to deny compensation was based on the absence of a “reasonable relationship” to the claimant’s employment; the court said, “Claimant’s action in undertaking a midnight pleasure drive in unfamiliar, mountainous terrain was, in our judgment, a clearly unanticipated, unforeseeable and unreasonable activity not normally to be expected of a traveling employee.” Clearly, no interest of the employer would be furthered by taking a drive in the mountains. Here, however, the employer’s interest played a key part in claimant’s trip and in his social activity, and I find no manifest error in the Commission’s determination that claimant’s walk alongside the railroad tracks and the resultant injury were incidental to his employment.
I believe that the present case is more closely analogous to those decisions cited by claimant in which compensation was awarded. In Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, for example, the court affirmed an award of compensation to the widow and five children of a traveling salesman who was killed on Memorial Day, 1967, while in Nebraska on business. There was a dispute in the evidence as to whether the deceased was engaged in business or recreational activity immediately preceding his death, but the court held that this did not bar an award. The court said:
“But even if it were to be assumed that the decedent was returning from an activity such as golfing, and not from his appointment, we judge that under the circumstances that conduct would not have been unreasonable. It was Memorial Day, a legal holiday in Nebraska, as in this State. The decedent was away from home in the course of an extended sales trip in behalf of his employer. It would be obviously unreasonable and contrary tó the intendment of the Workmen’s Compensation Act and its purposes to say that a traveling employee has the protection of the Act only when in the physical act of performing selling or other duties and only in the course of a normal business day.” (52 Ill. 2d 506, 511.)
(See also Hansen v. Industrial Com. (1951), 258 Wis. 623, 46 N.W.2d 754 (compensation awarded for death of an Arizona-based salesman found dead in Mexico near a restaurant-night club at 1:30 a.m. following an evening of socializing); Cavalcante v. Lockheed Electronics Co. (1964), 85 N.J. Super. 320, 204 A.2d 621 (compensation awarded for death of a traveling employee while returning to his motel from a dance hall two miles away); In re Claim of Kohl (1959), 9 App. Div. 2d 597, 189 N.Y.S.2d 361 (compensation awarded for death of a traveling employee driving to a restaurant 10 miles from a motel).) As Professor Larson states in his treatise, the pursuit of pleasure incident to employment does not bar an award. 1 A. Larson, Workmen’s Compensation sec. 18.42, at 4 — 287 (1978), citing Bradford Supply Co. v. Industrial Com. (1971), 50 Ill. 2d 190.
In Bradford Supply, a strikingly similar case which I believe is indistinguishable in any material respect, the court affirmed an award for the loss of a leg of a traveling employee. The employee had performed the required service, had consumed several beers with the customer, and was returning to his employer’s hometown at a late hour when he suffered his injury. In affirming an award, the court held that it was reasonable to expect the employee to remain and socialize with the customer after completing his task and that his injury clearly arose out of and was sustained in the course of his employment. (50 HI. 2d 190, 195.) Similarly, I believe that claimant’s injury sustained here is compensable.
In summary, and as the majority itself acknowledges, a traveling employee is generally considered differently from other employees in determining whether an injury arose out of and in the course .of his employment (Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 510), the implication being that a traveling employee is allowed more leeway in the activities he may pursue without losing the protection of the Act. The key inquiry is, as we have said, “the reasonableness of the specific conduct and whether it might normally be anticipated or foreseen by the employer ***.” (U.S. Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 475.) The Commission’s determination on this key element, however, is not to be disturbed unless contrary to the manifest weight of the evidence (Brewster Motor Co. v. Industrial Com. (1967), 36 Ill. 2d 443, 449); the evidence here is not so clear or uncontroverted that the issue becomes one of law, subject to resolution by this court de novo (Math Igler’s Casino, Inc. v. Industrial Com. (1946), 394 Ill. 330, 334). The Commission here rendered a decision favorable to claimant. I do not believe that a finding that the Commission’s decision is against the manifest weight of the evidence is possible unless we are to weigh the evidence or inject our own notions of credibility; yet these are not the functions of this or any reviewing court.
GOLDENHERSH, C.J., and CLARK, J., join in this dissent.