San Diego & Arizona Railway Co. v. Industrial Accident Commission

WASTE, J.

Del Rote, while employed by the petitioner here, was shot by a fellow-employee. The respondent Commission found that the injury, which resulted in Rote’s death, occurred in the course of and arose out of his employment. It also found that the employee left surviving him, and wholly dependent, his wife, Mary Rote, to whom it awarded a death benefit in the sum of four thousand nine hundred dollars, together with the usual allowance of one hundred dollars for funeral expenses. This is a proceeding to annul the award.

It is the contention of the petitioner that Rote was not acting in the course of his employment at the time he was shot, and, further, that even should it be found that the decedent may have been so acting at the time, the shooting

[342]

which caused his death did not arise out of his employment in any capacity.

The record is very voluminous, but the salient facts are as follows:

On April 23, 1922, Rote was employed by the San Diego and Arizona Railway Company as trainmaster and also as road foreman of engines. In such capacity he was in charge of the operation of all trains as soon as they were made up, and seems to have been charged somewhat with oversight of the equipment furnished. C. B. Trott was, at the same time, employed by the petitioner as night foreman at its roundhouse. Trott was not officially under Rote’s jurisdiction, but in the course of the latter’s employment it was frequently necessary for him to be informed about matters at the roundhouse. The railway is not a large one and the lines of authority over different departments do not appear to have been always recognized. For some time Trott had been in the habit of blowing the roundhouse whistle to call his men when he wanted them. Complaint was made by near-by residents about the noise thus made and on the night before the shooting Rote went to the roundhouse and inquired for Trott, who was absent. His purpose was to inquire why the whistle was blown to call the men. He left directions with another employee at the roundhouse to tell Trott to discontinue the practice of blowing the whistle during the night, and reported what he had done to Mr. Lowe, superintendent and chief engineer of the petitioner. Trott, the roundhouse foreman, was angered by the message he received from his fellow-employee.