
    INJURIES TO EMPLOYEES GOING TO OR FROM WORK.
    Common Pleas Court of Montgomery County.
    Irene Bowers v. The Industrial Commission of Ohio.
    Decided, September 30, 1921.
    
      Workmen’s Compensation — Not Payable to an Employee Injured by a Fall on Her ~Way Home From Work.
    
    On ber way borne, after working overtime at ber employer’s request, an employee of the Advance Laundry Company slipped and fell on the ice and sleet ‘in a paved public alley causing permanent disabilities. It was 6:30 in the evening and the alley was dark. She left the plant by the door usually used by employees and proceeded along the side of the building. The accident happned near a large door used by the employer for loading and unloading, at the side of the building. Her employer was a contributor to the state insurance fund.
    
      Held, That the accident did not “arise out of” and “in the course of her employment”; and under the workmen’s compensation act she is not entitled to relief.
    
      Donald Kirkpatrick and M. E. Spencer, for plaintiff.
    
      John Q. Price, Attorney General, B. B. Zurmehly and Haveth E. Man, for defendant.
   McCray, J.

After having complied with her employer’s request to do extra work, plaintiff left her place of employment at The- Advance Laundry Company’s plant about 6:30 in the evening on December 19th, 1919, by a door leading into a paved public alley in the city of Dayton, known as Thurman lane, which leads to "Wayne avenue, over which she was accustomed to go to her home. There was a larger doorway near .the door used by her through which the employer loaded and unloaded the washings of its customers, using Thurman lane to get to the doorway.

When the plaintiff came into the alley it was dark and the pavement was covered with ice and sleet due to the condition of the weather. She walked in Thurman lane in front of the larger doorway where she slipped and fell, sustaining serious injuries and permanent disabilities. As her employer was a.contributor to the state insurance fund, she made an application for compensation, which the Industrial Commission denied. The case is in this court on appeal from that finding. A general demurrer was filed to the petition which is now before the court for decision.

The supreme court has defined the general scope of the workmen’s compensation act (Section G. C. 1465-61 and 68), in the case of Fassig v. State, 95 O. S., 233, to mean that an injury received “in the course of employment,” refers only to an injury which is the result of, or “arises out of” the employment and that it does not cover “any injury which has its cause outside of or disconnected with the employment.” And it is held that it should be liberally construed in favor of employees. Industrial Commission v. Weigandt, 102 O. S., p.-. In that case the supreme court said:

“The presence of the employee in a factory with other employees involves the hazard of injury from the machinery, the work itself, or the acts, negligent or not negligent, of other employees. If an employee, while a part of that situation, receives an injury as the result of an occurence incidental to the conduct of the business, that injury was received in the course of his employment.”

The determination of the question arising upon the demurrer involves a construction of the meaning of the terms “arising out of” and “in the course of employment” and an application of the facts stated 'to these terms. The courts have almost universally held that the accident must both “arise out of” and be “in the course of employment.” ' No decision has been found among the reported cases in Ohio bearing upon the exact question, but there are many authorities in point' outside of the state.

Compensation has not been allowed by the courts construing the same language where precisely the same principle was involved in other acts; where the accident oecured either going to or coming from work, andi while the employee was outside the control of the employer, and off of the premises where the work was to be done. The cases cited show the trend of authority.

An employee was walking on his way to work along a footpath extending over a vacant piece of land belonging to the employer. At a point a little less than a quarter of a mile from his work he slipped on the ice and fell causing him injuries for which he made aplication for compensation which the English Court of Appeal refused. Gilmour v. Dorman, 105 L. T. R., n. s. (Eng.) 54, 4 B. W. C. C. 279. And in a similar ease a workman was injured while walking along a public foot-path while on his way to work when the injuries were received. The court denied compensation to the applicant. Williams v. Smith, 108 L. T. R. n. s. (Eng.) 200, 4 B. W. C. C. 102. A miner in Scotland had finished his day’s work and stepped out of the cage at the top of the pit and was returning home. He was walking on a beaten path along the branch railway of his employer about 400 yards from the mouth of the shaft when he was killed by an engine. The court held that the accident did not arise in the course of his employment, but expressed the opinion that if the employee meets with an accident within the precincts of the works it would arise out of and in the course of his employment although the actual working hours were over or had not begun. Graham v. Barr, 50 Scot. L. R. 391, 6 B. W. C. C. 412. A foreman of .a threshing outfit working among farmers used a bicycle which his employers furnished him with which to travel about in the business. The repairs and oil for this bicycle were provided by his employers. He was paid by the hour. After the close of his day’s work, he was riding the bicycle to his home about six miles away when he was killed by a motor vehicle. His widow was not allowed compensation. Edwards v. Wingham, 109 L. T. R. n. s. (Eng.) 50, 6 B. W. C. C. 511. A chief engineer with duties extending over many cities had left his commercial basis at the beginning of a period of deflation, tract was liable in tort to the party injured. If his financial home in Saginaw to attend to his duties in another city. He returned to Saginaw on the day of- the accident and attempted to board a street ear to go to his residecne. There, it was claimed he slipped and fell on the icy street producing injuries of which he died. He was not allowed compensation. Hopkins v. Michigan, Sugar Co., 184 Mich. 87. A motorman was struck and fatally injured by a passing automobile while attempting to board a street ear to go and have his watch inspected pursuant; to the rules of his employers. He was to secure free transportation to the watch inspector’s place of business according to the rules of the employer, yet compensation was refused. DeVoe v. N. Y. Ry. 218 N. Y. 318.

The danger to which the plaintiff was subjected in going home on that evening was one which was common to all the people of that neighborhood. She was exposed to no different hazard from travelling over the public way than all of the other citizens would have been though they were not employed at all. 'She was out of the control of the employer' where she was free to determine for herself where she would go upon leaving the employer’s door. She might go home or in any direction she pleased, as her day’s work was done and she was not needed until the next morning. But the dangers of a slippery street which had been made so by the elements, will not be decreased by going in a different direction.

The inevitable conclusion in the absence of special circumstances is that the journey home is not an incident to the employment; that plaintiff was not performing any act in furtherance of her employer’s business; that the accident was not due to any act or method of the employer in conducting its business; that, the accident did not “arise out of” the business or occupation of the employer, or “in the course of the employment.” This view of the case is sustained by all the authorities which are available upon this question.

The demurrer will be sustained and the petition dismissed, unless the plaintiff desires to plead further.  