Employers' Liability Assurance Corp. v. Industrial Accident Commission

WORKS, J.,

pro

tem.

The petitioners Tryon & Brain, copartners, were engaged in the operation of certain street-flushing motor vehicles in the city of Los Angeles and Earl

[569]

A. Booth was the driver of one of them. He was forbidden by his employers to permit any person to ride on the vehicle with him while he was in the discharge of his duty. Nevertheless, upon the occasion which is of interest in this proceeding, he had in company with him one Schilling, while he was engaged in his work. The truck operated by Booth had a seat across the front capable of accommodating two persons. Immediately in front of the right side of the seat was the steering wheel, by means of which the truck was guided, the vehicle being what is known as a right-drive machine. It was on the right side of the seat, therefore, that Booth was accustomed to sit when the truck was in service in his charge. On the occasion now in question, however, Schilling, who was an experienced motor driver, occupied the right side of the seat and operated the ear. Booth* was at his left and, while the truck was moving forward under the guidance and operation of Schilling, was engaged in the manipulation of a lever which controlled the discharge of water upon the street. While so engaged, Booth observed a wrench lying on the footboard of the truck. He feared it was about to fall into the street and reached over to pick it up. In his attempt to do so he pitched to the ground and suffered severe injuries from the fall. At the time, the truck was moving over a smoothly paved street and there was no jar nor shock to which Booth’s fall could be attributed.

Because of the injuries suffered by him, Booth made application to the respondent Accident Commission for compensation and it was awarded him. In this proceeding the petitioners seek to have the award annulled.

Petitioners’ first point is that Booth’s injury did not occur in the course of his employment, for the reason that when he surrendered the running of the truck to Schilling he stepped aside from his employment and took upon himself an added risk not within the course of the employment. Counsel cite several decided cases to the general point that compensation may not be awarded an employee where he departs from the performance of his regular work and takes up the discharge of another task for his employer, which latter is different from the ordinary work which the employee was engaged to perform. One of these cases, taking it as a sample of them all, is