Wiley Manufacturing Co. v. Wilson

Levine, J., delivered the opinion of the Court. We granted certiorari in this case to decide whether the injuries sustained by two co-workers while taking a shortcut along a railroad right of way to a company parking lot, located some 790 feet from the entrance to their place of employment, arose “out of and in the course of’ their employment within the meaning of the Workmen’s Compensation Act, Maryland Code (1957, 1964 Repl. Vol., 1976 Cum. Supp.) Art. 101, § 15. 1 The Circuit Court for Cecil County (Roney, J.) upheld awards granted the claimants by the Workmen’s Compensation Commission, and the Court of Special Appeals, in a carefully considered opinion affirmed in Wiley Mfg.

Co. v. Wilson, 30 Md. App. 87 , 351 A. 2d 487 (1976). We affirm. On March 21, 1974, at 7:30 a.m., appellees, Robert Leslie Wilson, a shipfitter, and Franklin LeRoy Jones, a welder, arrived for work at the steel fabricating plant and shipyard maintained by appellant Wiley Manufacturing Company, their employer, at Port Deposit, Maryland. Because of inclement weather, they were released for the day at approximately 11:30 a.m.

They “punched out” at the “time shack” and, joined by Arthur Allen Brewer and some other ²⁰³ employees, proceeded to walk up the main line tracks of the Penn Central Railroad in the direction of the “north parking lot,” where Jones, who was planning to drive Wilson to his home, had parked his car earlier that morning. While walking along the tracks, they and Brewer were struck from the rear by a northbound train, and sustained the injuries leading to the workmen’s compensation claims which culminated in this appeal. The physical facts necessary to an understanding of this case are best demonstrated by a plat admitted in evidence as an exhibit, which we have attached as an appendix to this opinion. The Penn Central Railroad tracks run generally in a north-south direction alongside the Wiley plant.

Access to the plant is gained at a public crossing directly in front of the main entrance, which lies at the foot of Ferry Street. Traditional grade-crossing signals are located at that point. The time shack is located just in front of the plant entrance. Ferry Street extends easterly from the plant entrance for a distance of 202 feet to Main Street, which parallels the railroad track.

The entrances to the north parking lot, one of two maintained by Wiley for its employees, are on Main Street. The plant itself is surrounded by a 10-foot fence, but the north parking lot is not enclosed. Testimony revealed that the Wiley Company employed approximately 350 men on two shifts. Every day prior to the accident, between 50 and 100 of them took the shortcut to the north parking lot by walking the entire 790-foot distance along the railroad tracks.

This amount of pedestrian traffic remained virtually undiminished following the accident, despite the company’s subsequent attempts to warn and discourage employees from walking on the railroad right of way. None of these efforts were made prior to the accident, although the company had been aware for several years of the use of the tracks by its employees. Approximately 30 trains, all but a few of which hauled freight, used the tracks on a daily basis. Some of these trains included 100 cars or more.

After being released from work on the day of the accident, Wilson and Jones departed from the time shack and headed ²⁰⁴ for the north parking lot by proceeding along the Penn Central tracks, as was their custom, instead of walking up Ferry Street to Main Street and then to the parking lot. While they were doing so, a train was stopped on the southbound track. When the northbound train approached, it began sounding a warning signal while some 100 yards south of the crossing. At least one of the other employees heard the signal and leaped to safety, but appellees did not, apparently because of the noise created by the stationary train on the southbound track, and were therefore struck from the rear at a point some 350 feet north of the time shack.

Employees of Wiley Manufacturing are paid until such time as they “punch out” at the time shack. Beginning at that point they are no longer under the control or supervision of their employer, particularly in regard to their route of travel or mode of transportation. The railroad tracks are owned by Penn Central and the two parking lots are maintained by Wiley as a “fringe benefit” for the convenience of the employees. The only direct testimony of the comparative distances between the time shack and the north parking lot was provided by the plant safety manager, who testified that the route along the tracks Was only some 25 feet shorter than that along Ferry and Main Streets and that this distance might have been even less, depending upon the particular location of an automobile on the parking lot. 2 In upholding the ruling of the Workmen’s Compensation Commission, the circuit court rejected the contention advanced by the employer and insurer that the injuries did ²⁰⁵ not arise “out of and in the course of’ employment, as required by the statute, saying: “In the absence of any action by the employer to discourage or prevent its employees from using the route along the railroad tracks to reach its parking lot, the employer impliedly consented to its use by its employees, and it being the natural or most direct way as well as the practical, customary, convenient and recognized way of ingress and egress, this case falls within the proximity rule exception to the general going and coming rule and the injuries sustained by the claimants in this case are compensable.” (Emphasis added).

The Court of Special Appeals affirmed, and speaking through Judge Moore concluded that: “... [W]orkmen’s compensation may properly be awarded as arising out of and in the course of employment where, as here, the injuries were sustained between two separate portions of the employer’s premises on a means of egress more convenient but less safe than an available public street and where the evidence shows that the use of such egress was common, continued over a substantial period of. time, and was neither forbidden nor warned against by the employer prior to the occurrence.” 30 Md. App. at 106 . We noted at the outset that the question here is whether the injuries sustained by the employees arose “out of and in the course of’ their employment within the meaning of Art. 101, § 15. This statutory standard has been the subject of frequent judicial interpretation throughout the history of the workmen’s compensation law. As we have said on numerous occasions, the words “out of’ refer to the cause or origin of the accident, while the words “in the course of’ relate to the time, place and circumstances under which it occurs.

Proctor-Silex v. DeBrick, 253 Md. 477, 480 , 252 A. 2d 800 (1969); Dep’t of Correction v. Harris, 232 Md. 180, 183 , ²⁰⁶ 192 A. 2d 479 (1963). We are concerned here with the “course of employment” requirement, which “demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.” 1 Larson, Law of Workmen’s Compensation § 14.00 (1972). In common with most other courts throughout the country, we have adopted the general rule that injuries received by an employee while going to or returning from his place of employment (the “going and coming rule”) do not arise “out of and in the course of’ employment, and therefore are not compensable under the Workmen’s Compensation Act. Dir. of Finance v. Alford, 270 Md. 355, 359-60 , 311 A. 2d 412 (1973); Saylor v. Black & Decker Mfg.

Co., 258 Md. 605, 607-608 , 267 A. 2d 81 (1970); Tavel v. Bechtel Corporation, 242 Md. 299, 303 , 219 A. 2d 43 (1966). The reason for the rule is that the workmen’s compensation law contemplates an employee engaged in a service growing out of his employment. An employee who is merely going to or coming from his work is not rendering any such service. He is therefore exposed to the hazards encountered on such trips, not as an employee, but rather as a member of the general public.

Tavel v. Bechtel Corporation, 242 Md. at 303 ; Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 357 , 118 A. 2d 486 (1955). By judicial decision, several well-established exceptions have been engrafted upon the “going and coming” rule. Here, the employees rely upon two such exceptions. The first, sometimes called the “premises” exception, is usually invoked where the employee is injured while traveling along or across a public road between two portions of his employer’s premises, whether going or coming, or pursuing the actual duties of his employment.

A typical application of this exception occurs where injury is sustained by an employee while traveling between a company parking lot and his employer’s plant: “Since ... a parking lot owned or maintained by the employer is treated by most courts as part of ²⁰⁷ the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises....” 1 Larson, supra at § 15.14 (emphasis added, footnotes omitted). The cases throughout the country, therefore, apply the “premises” exception not only where injuries are sustained on the employer-maintained parking lot itself, 3 but also where the accident occurs between the parking lot and the plant or actual place of employment. 4 We applied the “premises” exception in Proctor-Silex v. DeBrick, 253 Md. 477 , where an employee, while walking from a company-maintained parking lot to the plant located across the street, slipped and fell on an icy sidewalk in front of the plant. Judge Smith there said for the Court: “Where, as here, the claimant had arrived on the premises of her employer and was proceeding ²⁰⁸ without deviation of any kind directly to her work, it would be unreasonable to hold that injuries sustained by her on the parking lot or between the building entrance and the time clock would be compensable, but injuries sustained between the parking lot and the building entrance would not be compensable... .’’Id. at489. Accord, Saylor v. Black & Decker Mfg.

Co., 258 Md. at 608-11 ; see Pappas v. Modern Mfg. Co., 14 Md. App. 529, 535 , 287 A. 2d 798 , cert. denied, 265 Md. 741 (1972). The other exception to the “going and coming” rule relied upon here by the employees is the so-called “proximity” or “special hazard” rule, which, as we indicated earlier, was the explicit basis for the circuit court decision. 5 Succinctly stated, the proximity rule is identified with those cases involving accidents which occur at a point where the employee is within range of dangers peculiarly associated with the employment. 1 Larson, supra at § 15.00. This rule, therefore, has two vital components. “The first is the presence of a special hazard at the particular off-premises point.

The second is the close association of the access route with the premises, so far as going and coming are concerned.” Id. at § 15.13. The “proximity” rule has been considered in several Maryland cases, but with one exception has been found inapplicable to the facts of the particular case in which the rule was being asserted. In Md. Paper Products Co. v. Judson, 215 Md. 577, 588 , 139 A. 2d 219 (1958), where the employee was struck by an automobile while crossing the ²⁰⁹ street from his parking place to his employer’s plant, we held the “proximity” rule inapplicable, saying: “... Crossing streets is unfortunately often hazardous but it is a risk which has to be incurred by nearly everyone going back and forth between his home and his place of employment.

The Employee in the present case could have selected any place to cross the street that he might choose, and he was exposed to no unusual hazard in crossing... Accord, Salomon v. Springfield Hospital, 250 Md. 150, 154-55 , 242 A. 2d 126 (1968) (no recovery where injuries sustained by employee while crossing public highway in her car, even though highway cut through employer’s property; “traveling upon and crossing busy streets and highways, while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would be exposed to as a member of the general public.”); Stoskin v. Bd. of Educ. Mont. Co., 11 Md. App. 355, 357-58 , 274 A. 2d 397 (1971) (proximity rule inapplicable where school teacher on way to work stepped out of friend’s car on public street in front of school grounds and slipped on “coke” bottle; risk created by presence of bottle unrelated to proximity of school premises).

In Pariser Bakery v. Koontz, 239 Md. 586, 591 , 212 A. 2d 324 (1965), where compensation was denied a workman who, while walking on the sidewalk in front of his employer’s premises, was struck by a vehicle out of control, we said concerning the proximity rule: “... The gravamen of that rule is not that the employee is in close proximity to his place of employment, but rather that by reason of such proximity the employee is subjected to danger peculiarly or to an abnormal degree beyond that to which the general public was subjected... But cf. Pappas v. Modern Mfg. Co., 14 Md. App. at 535 (employee injured by fall on employer’s parking lot located half-block from plant; proximity rule applied). ²¹⁰ The proximity rule appears to have had its genesis in two widely cited Supreme Court cases, Cudahy Co. v. Parramore, 263 U. S. 418 , 44 S. Ct. 153 , 68 L. Ed. 366 (1923), and Bountiful Brick Co. v. Giles, 276 U. S. 154 , 48 S. Ct. 221 , 72 L. Ed. 507 (1928), in both of which it was contended that workmen’s compensation awards under the Utah statute violated the due process rights of the employer. 6 Both cases, as have so many involving application of the proximity rule, arose out of railroad-crossing accidents.

In Parramore , the employee was killed while en route to work when the automobile in which he was a passenger was struck by a locomotive. The road on which the automobile was proceeding when it crossed the railroad tracks was described by the Court as the “only practicable way of ingress and egress for employees” and “was the way customarily used.” 263 U. S. at 421 (emphasis added). The Court said: “Here the location of the plant was at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way.

He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected____” 263 U. S. at 426 . ²¹¹ The Court extended the Parramore holding still further in Giles . There also, the employee was killed while en route to work when struck by a train, albeit as he was proceeding on foot. But there, although it was also impossible to avoid crossing the railroad tracks, an alternative route via a public crossing, described as long, circuitous and inconvenient, was available and was apparently not used by the employees.

Though fully aware of the route taken by the employees, the employer merely cautioned Giles a number of times to be careful and instructed none of the employees to stop using the shortcut. On those facts, the Court ipheld an award under the Utah statute, saying: “... Since the only way of access to its brickyard from the east was across the railway tracks, the company necessarily contemplated the crossing of them by its employees. No definite line of travel being indicated by the company or followed by the employees, who, with the company’s full knowledge and acquiescence, habitually crossed wherever they saw fit, it results that, however the crossing was made, the risk thereby incurred was reasonably incidental to the employment and became annexed as an implied term thereof....” Bountiful Brick Co. v. Giles, 276 U. S. at 159 .

The proximity rule has been invoked on behalf of the injured employee in numerous railroad-crossing cases with mixed results. As this and other courts have uniformly recognized, eases involving the proximity rule and the other exceptions to the “going and coming rule” usually turn on their own individual facts. Md. Paper Products Co. v. Judson, 215 Md. at 584 . Consequently, no analysis of cases decided in other states can be meaningful without consideration being given to the particular facts involved.

Cases tending to support the employees’ position here, and on which they rely heavily, are: Reed v. Brown, 129 Ind. App. 75 , 152 N.E.2d 257 (1958), Johannsen v. Acton Construction Co., 264 Minn. 540 , 119 N.W.2d 826 (1968), Daly v. Edwards Engineering Corp., 107 N.J, Super. 183, 257 A. ²¹² 2d 730, 733 (App. Div.), aff'd, 54 N. J. 524, 257 A. 2d 697 (1969), and Hunt v. Allis-Chalmers Manufacturing Company, 445 S.W.2d 400 (Mo. App. 1969). In Reed , the employee was fatally injured upon returning from a luncheon break when his automobile was struck by a train as he was within 40 feet of reaching his place of employment.

The route taken by the employee was one of two available to him, the selection of either being entirely his to make. The evidence established that the alternative route also crossed the railroad tracks, but at a crossing where a flashing signal was present. The route actually taken,