Western Pacific Railroad v. Industrial Accident Commission

MELVIN, J.

A writ of

certiorari

was issued for the purpose of reviewing the action of the Industrial Accident Commission in awarding compensation to Earle Dean. The questions involved are very similar to those discussed and decided in

Hyman Brothers Box & Label Co. and Aetna Life Ins. Co.

v.

Industrial Accident Com., post,

p. 423, [181 Pac. 784]. In this proceeding, as in that one, the two contentions made by the petitioner were (1) that the injury suffered was caused by the young man’s serious and willful misconduct; and (2) that the commission exceeded its jurisdiction in fixing the basis for computing the average annual earnings of the injured minor.

The facts as disclosed by the testimony, which supports the findings, are in brief as follows:

Earle Dean was an intelligent young fellow, nearly eighteen years of age. He had been set to operating a drill press to which was affixed a metallic sign bearing words of warning.

The machine consisted of a drill with an upright shaft meshed into gearings upon a horizontal shaft. In an opinion filed by two of the members of the Industrial Accident Commission the injury and its cause are discussed as follows: “The vertical shaft at the time of the injury was revolving slowly and it was easier to wipe it while in motion than when

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still. While applicant was wiping it he saw a stream of grease running down the framework of the machine from the upper shaft and, without thinking about the consequences likely to flow from his act, made a dive with his cloth at this stream of .grease. The gearing caught the cloth and drew his hand into it, resulting in the loss of two fingers.

“It is clear that the sign warning against wiping the machine while in motion was intended to cover just such unforeseen and unlikely injuries as this.

“It follows, therefore, that if the warning sign, ‘Stop this Machine before Bepairing, Oiling, Adjusting or Wiping’ constituted a safety order and regulation