APPEAL from the Appellate Court for the Third District;
heard in that court on appeal from the Circuit Court of Christian
County; the Hon. JAMES G. BURNSIDE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Plaintiff Eva Jane Christian, administratrix of the estate of John Franklin Christian, and plaintiff Alice May Daugherty, administratrix of the estate of Albert Nelborn Daugherty, instituted proceedings in the circuit court of Christian County for damages for the deaths of the respective decedents from injuries sustained in a collision, allegedly caused by defendant's negligence, between the car in which decedents were riding and defendant's train. The cases were tried together and the jury returned a verdict for each plaintiff in the amount of $15,000, which the trial court set aside on defendant's motion for judgment notwithstanding the verdict, on the ground that plaintiffs' rights were barred by section 29 of the Workmen's Compensation Act. Ill. Rev. Stat. 1947, chap. 48, par. 166.
The facts material to the applicability of section 29 are uncontroverted. On November 20, 1948, at about 3:15 P.M., upon completion of their work as coal miners for the Peabody Coal Co., the decedents entered the automobile of a fellow employee and embarked for home. They drove through the north gate and off the mine property which was enclosed by a high wire fence. Although there was a south gate leading to the settlement of Jerseyville, approximately 90 per cent of the employees left through the north gate for their homes in the larger communities of Taylorville and Pana. There were, however, some four houses within the enclosed premises of the coal company occupied by the families of company officials and employees.
The decedents entered upon a dirt roadway which extended north about 150 feet from the mine fence to Taylorville Street, which ran in an easterly and westerly direction. The roadway was traversed just north of the coal company's property by defendant's right of way and tracks, extending approximately 100 feet. The track nearest the mine property was a switch track on which defendant stored trains, and the track north of it was used for through rail traffic. Defendant maintained that portion of the roadway traversed by its right of way, but that portion of the roadway north of the tracks was kept up by the highway commissioner of the township, and was within his jurisdiction. The coal company, however, had no control over any portion of the roadway or tracks, and did not furnish or pay for transportation for any of its employees.
There was every evidence that the roadway was semi-private and was not used by the general public, but by persons who had business with the mine, or who were visiting the families living on the company property, or by political speakers.
As decedents rode across defendant's tracks one of defendant's trains collided with the car in which they were riding, causing injuries resulting in their death.
On the basis of these facts and circumstances the trial court concluded that the accident arose out of and in the course of decedents' employment. Inasmuch as it was established that the decedents, their employer and defendant were all operating under the Workmen's Compensation Act, the court set aside the jury verdict in favor of plaintiffs on the ground that under section 29 of the act, where an employee sustains a compensable injury caused by a third party tort-feasor who is bound by the act, the employee or his representative is not entitled to assert any common-law or statutory rights for damages against such tort-feasor, since the employee's cause of action is transferred to his employer, who may recover from the tort-feasor only the amount of fixed compensation he is obliged to pay the employee. Schlitz Brewing Co. v. Chicago Railways Co. 307 Ill. 322; O'Brien v. Chicago City Railway Co. 305 Ill. 244; City of Taylorville v. Central Illinois Public Service Co. 301 Ill. 157.
In determining whether the Appellate Court erred in affirming the judgment of the trial court, we shall consider the applicability and scope of section 29 of the Workmen's Compensation Act.
It is clear that defendant had the burden of establishing that section 29 constituted a valid defense to plaintiffs' action. (Victor v. Dehmlow, 405 Ill. 249.) That section is applicable only if the death of the decedents was compensable, and, to be compensable, an accident resulting in death must "arise out of and in the course of employment." Dietzen Co. v. Industrial Board, 279 Ill. 11.
These phrases have been repeatedly defined by our courts. "In the course of" refers to the time covered by the employment, as well as reasonable conduct at a place where the workman might reasonably be while so employed. The test is triple, relating to time, conduct and place. (Schweiss v. Industrial Com. 292 Ill. 90.) "Arising out of" refers to the requisite causal relation between the employment and the accident. Inasmuch as the phrases are used conjunctively, there must be a concurrence of both elements for the accident to be compensable. Schweiss v. Industrial Com. 292 Ill. 90.
It has been held as a general guiding proposition that after an employee leaves the employer's premises at the close of his working hours he is no longer in the course of his employment. Fairbank Co. v. Industrial Com. 285 Ill. 11; General Steel Castings Corp. v. Industrial Com. 388 Ill. 66; Payne and Dolan v. Industrial Com. 382 Ill. 177; Northwestern Yeast Co. v. Industrial Com. 378 Ill. 195; Sanborn Co. v. Industrial Com. 405 Ill. 50, 54.
Under certain circumstances, however, this rule that employment begins and ends at the employer's premises has been extended to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. (Bountiful Brick Co. v. Giles, 276 U.S. 154; Schafer v. Industrial Com. 343 Ill. 573.) Whether the rule can properly be extended so that an employee returning home from his place of employment may be deemed in the line of his employment depends ultimately upon the special circumstances in each case. (Schweiss v. Industrial Com. 292 Ill. 90, at p. 93.) The inquiry of the court in each instance is whether the employee when injured was at a place where he was subject, by reason of his employment, to a hazard to which the public is not exposed, and to which he is exposed peculiarly and to a greater degree than the public. General Steel Castings Corp. v. Industrial Com. 388 Ill. 66; Payne and Dolan v. Industrial Com. 382 Ill. 177.
It is not sufficient, however, to establish that the employee would not have been at the place but for his job. Consequently, it has been held that if the employee's work for the day is ended and he is at a place off the employer's premises where the hazard to which he is exposed is the same, and of the same degree, as that to which the public is exposed, the injury is not compensable. General Steel Castings Corp. v. Industrial Com 388 Ill. 66; Payne and Dolan v. Industrial Com. 382 Ill. 177.
These principles of compensation law have been applied by our courts in cases involving facts closely analogous to those in the case at bar and where the ...