Casualty Co. of America v. Industrial Accident Commission

ANGELLOTTI, C. J.

This is a proceeding in

certiorari

to review an award made by the Industrial Accident Commission in favor of Anna I. Anderson, widow of John A. Anderson, on the theory that the death of the latter was the result of injury received by him in the course of and arising out of his employment by the National Ice and Cold Storage Company, a corporation, the petitioner being the insurance carrier of said company. The award is assailed on the ground that there was not sufficient evidence to sustain the finding of the commission that the injury arose out of and happened in the course of his employment.

Anderson was fatally injured during the evening of July

22,

1916, while on duty on the employment premises as an employee of the Ice and Cold Storage Company, by falling from one of the upper floors of the company’s building down the elevator shaft of a small platform elevator, used by employees, to the basement. The commission found that “said employee being about to use an elevator on the employer’s premises, stepped into the elevator shaft and fell to the bottom of the shaft, the elevator having been moved the moment before by another employee, unknown to said employee Anderson. ’ ’ The elevator was operated by the employee having/ occasion to use it, and could be brought to any particular floor by one on that floor by means of the rope by which it was operated, unless held in place or locked by a device thereon.

The evidence, we think, shows without substantial conflict that the employee who moved the elevator just before the accident, one Brigham, was on the top floor of the building,

[532]

which he called the third floor, and that he was moving it up to that floor from some lower floor at which Anderson had just left it for some purpose, and was there attempting to use it again, when he fell. In other words, Anderson was not on the top floor when he attempted to use the elevator, but was on some lower floor. The evidence of Brigham, whose work was wholly on the top floor, was clear and positive to the effect that while there he had occasion to go to the first floor and went to the elevator shaft, rang the bell to warn others of his intended use of the elevator, and pulled the rope to bring the elevator up to that floor. He saw no sign of the presence of deceased at the time. We read the finding of the commission that “the deceased