Robert Sherer & Co. v. Industrial Accident Commission

VICTOR E. SHAW, J.,

pro tem.

Certiorari

to review the proceedings of the Industrial Accident Commission, wherein

[616]

an award of compensation was made by it to Charles F. Bowin, minor son of P. L. Bowin, for the death of the latter while in the employ of Robert Sherer & Company, contractors, who were engaged in constructing a railroad extending easterly from the city of San Diego.

In the performance of the work the contractors, during the daytime and as occasion required, operated a locomotive engine. At the close of the day’s work it was the custom of the crew in charge of this locomotive to deliver it to said P. L. Bowin, who was night watchman of the engine, and whose duties under his employment were “to stay on the engine at nights and keep it alive, keep steam in it, and have it full of water and oil in the morning, ready for the day crew to go on the shift.” The contractors also in connection with the work operated a steam-shovel in the care of which at night one Wilfong was employed as watchman and whose duties with reference thereto were similar to those of Bowin in caring for the engine. On the night in question, when Bowin met his death, the superintendent of the contractor at the close of the day’s work, having occasion to go to Tia Juana, some distance west of the camp at the point where work was being done, took charge of the engine and at about 6 o’clock P. M. left for his destination, expecting to return at 10:30, during which interval Bowin was relieved from duty until the engine got back, though it appears that he did, for an hour or so, operate a donkey-engine in pumping water into a tank from which a supply of water was obtained. While thus engaged, Wilfong, having in the course of his employment taken charge of the steam-shovel and entered upon the performance of his duties in the care thereof, went to the tank, some one thousand feet distant, where deceased was engaged, and told him that he, Wilfong, was going to camp, where his wife had arrived that evening, and, in effect, requested Bowin to take his place at the steam-shovel, stating that he would return about 10 o’clock, to all of which Bowin assented. Upon Wilfong’s return at the hour named he found the dead body of Bowin lying on the floor of the platform upon which the steam-shovel was installed, he having been killed by the use of a knife wielded by a hand other than his own. Whether upon reaching the steam-shovel deceased discovered an intruder who killed him, or by whom or for what reason the deed was committed, is not made to appear, although the evi