McAdoo v. Industrial Accident Commission

CONRET, P. J.

Certiorari.

Pursuant to stipulation, the above-named petitioner has been substituted in place of the original petitioner, Los Angeles & Salt Lake Railroad Company. The writ was issued to review an order of the Industrial Accident Commission, awarding to Robert H. Hogan compensation for injuries received by him while working as an employee of said Railroad Company. It is conceded that if the injury received by Hogan was caused by his serious and willful misconduct, this court may set aside the award and remand the case to the commission for the reduction of the award to one-half of the amount allowed by the commission.

Section 6 of the “Workmen’s Compensation, Insurance and Safety Act of 1917” (Stats. 1917, p. 831), in subdivision 4 thereof, reads as follows: “Where the injury is caused by the

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serious and willful misconduct of the injured employee, the compensation otherwise recoverable by him shall be reduced one-half;

provided, however,

that such misconduct of the employee shall not be a defense to the claim of the dependents of said employee, if the injury results in death, or to the claim of the employee, if the injury results in a permanent partial disability equaling or in excess of seventy per cent of total;

and provided, further,

that such misconduct of said employee shall not be a defense where his injury is caused by the failure of the employer to comply with any provision of law, or any safety order of the commission, with reference to the safety of places of employment.” The award in this case is made upon a permanent partial disability equaling thirty and one-quarter per cent of total disability of the right eye.

The accident by which the applicant E. H. Hogan was injured occurred on February 12, 1918, while he was employed as a machinist’s helper. He was reaming saddle-bolt holes in a locomotive with an air motor and reamer. The reamer became stuck and caused a burr to form in the top of the hole. He removed the reamer and chipped the burr off, and a piece of steel glanced off and struck him in the eye. He was not at that time wearing any goggles or other protection to the eyes. He had been employed as a machinist’s helper at that place for about four months, and had several years’ experience as a workman in other machine-shops. At several places in the shop was posted a circular headed “Safety Eules for Shop-men.” One of these was, “Do not do any chipping or grinding without wearing safety goggles. If you are not provided with goggles, go to foreman.” The applicant admitted that he had seen the notices posted, but that he never read them. Nevertheless, it is conceded that he was “familiar with the purport” of this rule. He knew that the company provided goggles and that they were to be found in the tool-room. The following questions and answers are part of the testimony of the applicant before the commission: “Q. Have you ever used any glasses at all ? A. I used goggles when I was doing a regular job of chipping. Q. You were doing a job of chipping at that time?. A. Eegular'chipping job. This is just an incident of where you pick up a hammer and chisel and knock off a chip and go right ahead with your regular line of work. Q. You were using a reamer driven by air