Bountiful Brick Co. v. Ind. Comm. of Utah , 68 Utah 600 ( 1926 )

I dissent.

The Bamberger railway runs north and south. Its right of way is fenced with posts and five strands of wire. The brickyard where the deceased was employed is west of the right of way. About 200 yards south of the brickyard is a public highway, running east and west, crossing the railroad right of way. The deceased lived south of the highway and east of the railroad track. On the morning of the accident, he, on leaving his residence to go to work, delivered some eggs at a farmhouse north of the public highway and east of the railroad right of way and about due east of the brickyard. After delivering the eggs, he started to go to the brickyard. In going to the farmhouse, he traveled on foot either through the field or along another public highway, running north and south and east of the railroad right of way. From the farmhouse, he, after delivering the eggs, went through a field to the east fence of the railroad right of way at a point a little north of east from the brickyard, and there crawled through or between strands of wire, and entered upon the railroad right of way, and, while attempting to cross it, was struck by a passing train operated by the railroad company and was killed. He was 74 years of age and hard of hearing. There were no wires down and no opening at the point where the deceased entered the right of way. In the west fence of the railroad right of way, at a point a short distance north of the brickyard and about opposite the place where the deceased entered the right of way, there was what is spoken of as an opening between two posts, caused by the middle wires being down or cut, but the top and bottom were wires up and in place. There is no claim made that there was any trail or path running easterly and westerly across the railroad right of way, and especially none at the place where the deceased entered the right of way. The brickyard company had not anything to do with maintaining the fence, nor was the opening in the west fence maintained in any sense for the use or benefit of the company or with its consent or acquiescence; nor did the opening exist, nor was it maintained as a means of egress from and ingress to the premises of the brickyard company. The company had no duties whatever to perform with respect to the fence or to the opening. How or for what purpose the opening was occasioned or created, or suffered and permitted to be there, is not disclosed. That it was not done by the brickyard company or by any one directed or authorized by it, and that it was not created as a means of ingress to or egress from the brickyard, and that the brickyard company had nothing to do in suffering and permitting the opening to be there were all clearly shown.

Between the brickyard and the highway to the south there was a ditch, which because, of its depth and not because of water, for there was no water in the ditch, was inconvenient and difficult to cross; but one traveling along the highway on the south, proceeding westerly beyond the end of the ditch a short distance, and then traveling north, had a safe and convenient means to reach the west entrance of the yard. Thus the deceased, ordinarily, in leaving his house, well could have traveled north to the public highway running east and west, thence westerly along the highway and across the railroad right of way at the public crossing, then continue westerly along the highway past the ditch, and then north to the west entrance of the brickyard. That was the natural and a safe and convenient route. If the deceased had duties to perform at the west entrance or portion of the yard, such route was not to any appreciable extent longer than along the public highway to the crossing and then north along the right of way about 200 yards to the opening in the west fence. If he had duties to perform at the east entrance, the latter route was several blocks shorter. Though the natural and safe route was a few blocks longer than the course along or over the right of way, yet that in no particular rendered the natural route inaccessible. The reason given at the hearing was not that the deceased could not have taken the natural and safe route, or that such route was inaccessible, but that the other route was shorter and for that reason more convenient. As to that, I do not find any substantial dispute or controversy in the record. I thus do not find anything to support the finding of the commission that the course pursued by the deceased was the only accessible route or means of ingress to or egress from the plant.

The commission also found that the course pursued by the deceased at the time of his injury and death was a customary route. I do not find sufficient evidence in the record to support that. A witness on behalf of the applicant testified that he saw other employees of the brickyard company travel along the right of way or across it at different places and pass through the opening in the west fence; but, when asked how many he saw do that, he answerd that he saw only two of such employees. The manager of the brickyard company testified that he saw the deceased a number of times going to his work; that his route varied; that it was not always the same; that sometimes he went to the north of the plant and through the opening, sometimes over the Bamberger property, and at times he saw him go along the highway to the public crossing, then travel north along the railroad right of way to the opening in the fence and go through it, but not as a regular thing; that he saw other employees go along the railroad right of way and through the opening in the fence, and that he made no objections, but about a year before the death of the deceased he saw him on the railroad track on an occasion when he barely escaped being struck by a passing train, and he then warned him and told him to stay off the track. Though other employees were not warned and told to keep off the railroad track, the deceased was. But whether the employees were or were not warned, or whether the brickyard company did or did not object to its employees taking or traveling such course, is, as I think, immaterial, for such travel was not on the premises of the brickyard company, but was a chosen way by the employees themselves on their way to and from work, and before they reached or after they had left the premises of the company. The company did not control or in any way attempt to control the manner or course of travel of any of its employees to or from work. That was left entirely with the individual employee. The course taken by the deceased was not the only course open to him, but was one voluntarily chosen by him as being more convenient because it was shorter. I think on the record it is shown beyond dispute that the course so voluntarily taken by the deceased was not, as in the case of Cudahy Packing Co. v. Ind Comm.,60 Utah, 161, 207 P. 148, 28 A.L.R. 1394, the sole means of ingress or egress to or from the place of work, but that there was open to him a natural and safe route which he could have taken but failed to do so, and for his own convenience voluntarily chose a dangerous and unsafe course merely because it was shorter. In the Cudahy Packing Company Case the court, after observing that there was no means or way existing by which the employee could go to the plant where he was employed other than the course taken by him, stated:

"If the liability exists, it is by reason of the fact that the plant or manufacturing establishment is so located that there is no other method or means of approach except over railroad tracks or other dangerous places, and that the same are in such close proximity to the plant that the employee has no election or option in determining or selecting his way of approach."

I thus think this case does not come within the Cudahy Packing Company Case, but is within the rule or doctrine announced in the cases of North Point Con. Irr. Co. v. Ind. Comm., 61 Utah, 421,214 P. 22, and Reed v. Lumber Co., 225 Mich. 164, 196 N.W. 420, and that the injury and death of the deceased did not arise out of or in the course of his employment. It is clear to me that after he delivered the eggs to his neighbor at the farmhouse, instead of retracing his steps back to the public highway, he went through his neighbor's field to the east fence of the railroad right of way, and there, without license or permission, crawled through or between the strands of wire and without right entered upon the private right of way of the railroad company and was killed. I therefore think the award made by the commission should be set aside.