holding that a lightning accident “arose out of” employment because the “employment required [the employee] to be in a position where the lightning struck him”Summary of this case from City of Brighton & Cirsa v. Rodriguez
Decided March 28, 1927. Rehearing denied April 12, 1927.
Proceeding under the workmen's compensation act. Judgment for claimant.
1. WORKMEN'S COMPENSATION — Lightning — Course of Employment. A farm hand returning with a team of horses to his employer's premises from a neighboring farm was killed by lightning while crossing a rocky hill near a wire fence. Held, that his death was the result of an accident arising out of his employment.
Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.
Messrs. COOK BURKE, for plaintiffs in error.
Mr. WILLIAM L. BOATRIGHT, Attorney General, Mr. JEAN S. BREITENSTEIN, Assistant, Mr. PHILIP S. VAN CISE, Mr. KENNETH W. ROBINSON, for defendants in error.
Messrs. GILLETTE CLARK, Mr. LEROY J. WILLIAMS, Mr. WILLIAM E. HUTTON, Mr. J. P. NORDLUND, amici curiae.
LAURA C. Oakley was awarded compensation by the Industrial Commission for the death of her son, Lyle Oakley. The district court affirmed the award and the insurance carrier and the employer bring error.
The deceased was a farm hand and was sent by his employer to work for a day on a neighbor's farm. While returning by the most feasible route, with a team of horses, but without a wagon, crossing a high rocky hill near a wire fence, he and the horses were killed by lightning. He was so near the horses that one of them fell on him and he was so found.
The sole question for us is whether the death was one arising out of his employment. C. L. § 4389.
In Hassell I. W. Co. v. Industrial Commission, 70 Colo. 386, 201 P. 894 an award for death by lightning was sustained because the victim was working on a steel bridge over water, and it was said, (page 390) that because of that the employment involved special risk, and so there was a causal relation between the employment and the death.
A majority of the court thinks that, since Oakley's employment required him to be in a position where the lightning struck him, there was a causal relation between employment and accident, so that the latter may be said to arise out of the former and therefore the judgment should be affirmed. The writer, however, is of the opinion, in which the Chief Justice concurs, that the mere fact that duty calls the employee to the place where he is killed or injured, is not enough; yet recognizes that the precedents in this state and in the Supreme Court of the United States extend even beyond limits which would include the present case and so concurs in the result reached by the majority.
For analogous cases see Industrial Commission v. Pueblo Auto Co., 71 Colo. 425, 207 P. 479, 23 A.L.R. 348; Industrial Commission v. Hunter, 73 Colo. 226, and State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653.
MR. JUSTICE ADAMS dissents.