McAdoo v. Industrial Accident Commission

Certiorari. Pursuant to stipulation, the above-named petitioner has been substituted in place of the original petitioner, Los Angeles & Salt Lake Railroad Company. The writ was issued to review an order of the Industrial Accident Commission, awarding to Robert H. Hogan compensation for injuries received by him while working as an employee of said Railroad Company. It is conceded that if the injury received by Hogan was caused by his serious and willful misconduct, this court may set aside the award and remand the case to the commission for the reduction of the award to one-half of the amount allowed by the commission.

Section 6 of the “Workmen’s Compensation, Insurance and Safety Act of 1917” (Stats. 1917, p. 831), in subdivision 4 thereof, reads as follows: “Where the injury is caused by the

The accident by which the applicant E. H. Hogan was injured occurred on February 12, 1918, while he was employed as a machinist’s helper. He was reaming saddle-bolt holes in a locomotive with an air motor and reamer. The reamer became stuck and caused a burr to form in the top of the hole. He removed the reamer and chipped the burr off, and a piece of steel glanced off and struck him in the eye. He was not at that time wearing any goggles or other protection to the eyes. He had been employed as a machinist’s helper at that place for about four months, and had several years’ experience as a workman in other machine-shops. At several places in the shop was posted a circular headed “Safety Eules for Shop-men.” One of these was, “Do not do any chipping or grinding without wearing safety goggles. If you are not provided with goggles, go to foreman.” The applicant admitted that he had seen the notices posted, but that he never read them. Nevertheless, it is conceded that he was “familiar with the purport” of this rule. He knew that the company provided goggles and that they were to be found in the tool-room. The following questions and answers are part of the testimony of the applicant before the commission: “Q. Have you ever used any glasses at all ? A. I used goggles when I was doing a regular job of chipping. Q. You were doing a job of chipping at that time?. A. Eegular'chipping job. This is just an incident of where you pick up a hammer and chisel and knock off a chip and go right ahead with your regular line of work. Q. You were using a reamer driven by air

[1] It thus appears that there is no definite contradiction of the testimony given by the foreman and clerk on this matter, but rather that silence which gives consent. The job on which Hogan was employed involved the reaming of about fifty of those saddle-bolt holes, and included more than one day’s work. That the forming of burrs was a common incident of that work is not denied. It was so much expected that Hogan kept by him a hammer and chisel with which to remove the burrs. He voluntarily and intentionally omitted to obtain and use goggles, contrary to rules of which he had knowledge, and contrary to specific instructions, all of which were laid down for his protection. The only reasonable explanation is that he disliked the goggles because they were, as he said, “in his way”; and so he preferred to take the chance of personal injury. This was willful misconduct and it was serious. The ease was in essential elements very similar to that disclosed in Great Western Power Co. v. Pillsbury, 170 Cal. 180 , [ 149 Pac. 35 ], where an electric lineman disobeyed a known rule and positive instructions requiring him to wear rubber gloves while handling high-power wires, and in consequence was killed while doing that kind of work without gloves. As the court there said: “It cannot be doubted that a workman who violates a reasonable rule made for his own protection from serious -bodily injury or death is guilty of misconduct and that where the workman deliberately violates the rule, with knowledge of its existence and of the dangers accompanying its violation, he is guilty of willful misconduct.” The case at bar sharply distinguishes itself from that of Diestelhorst v. Industrial Acc. Com., 32 Cal. App. 771 , [ 164 Pac. 44 ], where the misconduct of the applicant occurred in a moment of thoughtlessness and not with deliberate intention. The commission’s finding, that the applicant’s injury was not proximately caused by his serious and willful misconduct, is not sustained by the evidence.

Our conclusion is, that upon the record produced herein, the award to the applicant should have been for only one-half

Shaw, J., and James, J., concurred.