Pacific Electric Railway Co. v. Industrial Accident Commission

CONREY, P. J.

This is a proceeding in

certiorari

to review an award made by the Industrial Accident Commission, of compensation for the death of one Walter J. Leigh, who at the time of the accident which caused his death was a car conductor in the employ of Pacific Electric Railway Company. The beneficiaries of the award are the widow and minor son of said Leigh.

On March 5, 1932, Leigh was employed on that part of the employer’s railway system which runs between Clare

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mont and Pomona. The company maintains a terminal station on Carey Street in Pomona, with a passenger station on the west side of the street. The railroad tracks are laid in the street, level with the pavement in the usual way for street railway tracks. The car on which Leigh was conductor arrived at the Pomona station at 8:28 in the evening, and was due to leave Pomona for its next run at 8:50, thus leaving an interval of twenty-two minutes. For lay-over periods of less than one hour employees received pay, but according to the custom of the company, employees might use these intervals of time for their own purposes.

On the occasion in question Leigh telephoned to his home in Pomona and requested his son to bring down the family automobile and take him home so that he might change shoes. This was done and after the change of shoes the return trip was made to the railway station, arriving there at 8:50, just in time for Leigh to be on the car for its run to Claremont. The motorman had brought the ear to its position on the north-bound track, with the open car door opposite to the door of the station on the west side of the street. The Leigh boy brought the automobile to a stop at the west curb, south of the station. The employee Leigh stepped out of the car and walked in a northeasterly direction toward the door of the street-car. When he had arrived at the south-bound track, and at a distance of about ten feet from the car door, he was hit by a passing automobile, thereby causing his death.

When, after the application tor adjustment of claim had been filed with the Industrial Accident Commission, the case was brought to hearing before a referee, admissions of fact and undisputed evidence left open for decision the single issue: “Was death caused by injury which arose out of and in the course of employee’s employment?” The attorney for the company suggested a stipulation as follows: “Cannot we stipulate that it happened in a certain way, that is to say he had half hour lay-over on pay, and that he had gone to his home and returned to his car at about the leaving time, the -only issue remaining that is whether or not he had arrived at his place of employment.” At that time the applicant Mrs. Leigh was not represented by counsel, and she made no response to the offered stipulation. The referee then asked her if she was willing to admit that