Wiley Manufacturing Co. v. Wilson

Moore, J., delivered the opinion of the Court. Taking a short cut via a railroad right of way to a company parking lot located some 790 feet from the plant where they were employed, two co-workers were seriously injured and their companion was killed when they were struck by a train. In the workmen’s compensation case which followed, the claimants prevailed before the Workmen’s Compensation Commission and its awards were affirmed by the Circuit Court for Cecil County. The question presented on this further appeal by the Employer and Insurer is whether the court erred in holding that under exceptions to the “going and coming” rule * 1 the injuries and death arose out of and in the course of employment of the three men in accordance with the requirements of the Workmen’s Compensation Act, Art. 101, Maryland Code Annot., § 15 (1975 Cum.

Supp.). I The claims of the two survivors and that of the widow of the decedent were consolidated. The pertinent facts as ⁸⁹ contained in the record before the Workmen’s Compensation Commission received into evidence below and in testimony before the Circuit Court are these: The claimants, Franklin Jones and Robert Wilson, and the decedent, Arthur Brewer, were employed by the Wiley Manufacturing Company, a steel fabricator and medium-sized shipyard at Port Deposit, Maryland. As shown on the plat submitted in evidence and appended to this opinion, the plant is enclosed by a ten foot fence and is situated along the main line tracks of the Penn Central Railroad which run in a north-south direction.

The entrance to the plant is on Ferry Street which crosses the railroad tracks and dead-ends at the plant entrance. At that location there are the customary railroad warning devices for vehicular and pedestrian traffic. The Wiley Company had a total work force of approximately 350 men, on two shifts. It maintained employee parking lots, one of which was designated “North Parking Lot,” and was located approximately 790 feet north of the plant entrance, abutting Main Street.

Street access to this parking lot was by way of Ferry Street and Main Street. Somewhat shorter access was by way of the Penn Central Railroad tracks. The lot was not fenced. Approximately 30 trains — mostly freight — used the tracks daily, some consisting of as many as 100 cars.

Between 50 and 100 men walked the tracks every day to the North Parking Lot and most continued to do so even after the accident. Franklin Jones and the decedent, Arthur Brewer, were employed as welders. Mr. Wilson was a shipfitter, first class. On March 21, 1974 their work day began at 7:30 a.m. when they were released from work at 1-1:30 a.m.

They punched inside the plant entrance. Because of inclement weather they were released from work at -1:30 a.m. They punched out at the time shack at that time, and by prearrangement, they were to ride home together in Mr. Jones’ car which he had parked in the North Parking Lot. Instead of walking to the parking lot by way of Ferry Street and Main Street, they made their way north along the main line Penn Central ⁹⁰ Railroad tracks.

(Jones had been using the tracks for five years and Wilson more than ten.) A train was stopped on the southbound track with its engines running. After the men had been walking a short time and had travelled approximately 350 feet from the time shack, they were struck from the rear by a train on the northbound track. The survivors said that because of the noise from the southbound train they had not become aware of the approaching northbound train. Employees of Wiley Manufacturing Company were paid only from the time they punched in until the time they punched out and were free to choose their own means of transportation and, of course, their route to and from work.

The parking lot was a “fringe benefit”. The company did not own the property on which the railroad tracks were located and exercised no control over it. After the accident in this case warnings were issued by the company against the use of the tracks by the workers. These consisted of verbal admonitions by a guard stationed at the public crossing as well as printed statements in pay envelopes that the employees were forbidden by law to trespass on the railroad property.

Prior to the accident the workers had never been advised or instructed by management not to use the tracks. There was, however, a posted notice of Penn Central that “All persons are forbidden to enter, cross over or trespass upon this property, under the penalty provided by law.” The lower court, in a detailed written opinion, rejected the contentions of the Employer and Insurer that the injuries and death did not arise out of and in the course of employment. Rather, the court held: “At the time of the accident the claimants were in close proximity to the employer’s plant between the plant and the parking lot maintained by the employer at an appropriate time on a route customarily used by other employees, which was a direct and convenient way of ingress or egress to the plant from the parking lot, and used by said employees with the implied consent of the ⁹¹ employer. Therefore, this case falls within the exceptions to the general rule and the injuries sustained by the claimants are compensable.” (Emphasis added.) II The “exceptions” to the general going and coming rule recognized in Maryland and to which the lower court referred are the “proximity rule” and the “premises rule”.

The elements of the “proximity rule” were defined by Chief Judge Murphy in Stoskin v. Board of Education of Montgomery County, 11 Md. App. 355 , 274 A. 2d 397 (1971), supra, n.1. Upon the authority of Maryland Paper Products Company v. Judson, 215 Md. 577 , 139 A. 2d 219 (1958) citing 8 Schneider, Workmen’s Compensation, § 1724 (1951) and Pariser Bakery v. Koontz, 239 Md. 586 , 212 A. 2d 324 (1965), the proximity rule was explained in Stoskin to mean that an employee is in the course of his employment while coming to or going from his work when, although off the actual premises of his employer, the employee is: (1) In close proximity to the premises; (2) Proceeding diligently at an appropriate time by reasonable means; (3) Using the natural, practical, customary, convenient and recognized way of ingress or egress; (4) Traversing land under the control of the employer, or on adjacent property with the express or implied consent of the employer. The Court in Stoskin also observed that the rule, as analyzed in Pariser Bakery, supra, “allows compensation for an injury to an employee when, under the special facts of the case, the employment itself involved peculiar and abnorma’ exposure to a common peril which is annexed as a risk incident to the employment.” The rule was held to be unavailing in Pariser Bakery where the employee, a dough mixer, had completed his work, ⁹² dressed in the locker room and punched his time card. He then walked outside and was struck on the sidewalk, about seven feet beyond the building line, by an automobile out of control.

Judge Marbury stated that, “[t]o allow recovery under the facts presented in this case would convert the proximity rule into a general rule applying to any street upon which a business might front.” 239 Md. at 591 . Application of the proximity rule was also withheld in Stoskin, supra, where the appellant, a school teacher, was being driven to work by a friend. When she arrived outside the school grounds, carrying an armful of school books, she was injured as she alighted from the vehicle and stepped on a Coca Cola bottle which rolled out of the car and landed beneath her feet. She slipped and fell within the public right of way.

This Court held that the lower court correctly decided that the proximity rule did not apply because the claimant was not by reason of her proximity to the school subjected to any special danger different from that to which the general public was subjected. On the other hand, in Pappas v. Modern Manufacturing Co., 14 Md. App. 529 , 287 A. 2d 798 (1972) a lower court holding that the proximity rule was inapplicable was reversed. There, the employee slipped on some ice and fell, fracturing her right arm, while she was still on a parking lot provided by the employer and where access to the building where she worked was by way of a ten foot alley between the building and the parking lot. Writing for this Court, Judge Anderson stated that the case was controlled by the holding of the Court of Appeals in Proctor-Silex v. DeBrick, 253 Md. 477 , 252 A. 2d 800 (1969), infra.

The “premises rule”, also a creature of case law, is designed to allow compensation for injuries sustained before or after actual working hours while on the premises of the employer and/or under an extension of the literal concept of “premises”. 2 Larson, supra, § 15.12; Salomon v. Springfield Hospital, 250 Md. 150 , 242 A. 2d 126 (1968); Proctor-Silex ⁹³ Corp. v. DeBrick, supra; Saylor v. Black & Decker Manufacturing Co., 258 Md. 605 , 267 A. 2d 81 (1970). Speaking for the Court of Appeals in Salomon, supra, Judge Marbury articulated the “premises rule” in the following context: “. . . we recognize that ordinarily an employee who has arrived on his employer’s premises as usual, in preparation for beginning his day’s work, is considered to be on the premises and therefore covered by workmen’s compensation even though his actual employment has not begun. . . .” 250 Md. at 155 . (Emphasis added.) And in Proctor-Silex, supra, where an employer’s parking lot in Baltimore County was located across Coolidge Avenue from the employer’s plant and the employee was injured when she slipped and fell as she was crossing from the parking lot to the building in which she was employed, the injuries were held to be compensable. In a comprehensive opinion reviewing Maryland cases and leading cases in other jurisdictions principally involving the subject of “premises”, Judge Smith quoted from Larson, op. cit., supra, § 15.41, with respect to parking lots: “As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the premises whether within the main company premises or separated from it.” (Emphasis added.) 3 Maryland follows the majority rule.

Giant Food v. Gooch, 245 Md. 160 , 225 A. 2d 431 (1967); Smith v. General Motors Assembly Division, 18 Md. App. 478 , 307 A. 2d 725 (1973); Pappas v. Modern Mfg. Co, supra. Travel between two parts of an employer’s premises, the subject fundamentally involved in this appeal as it was in ⁹⁴ Proctor-Silex , is the subject of a general rule enunciated in Larson, § 15.14 also quoted by Judge Smith: “One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties. “Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of 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. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.” 253 Md. at 482, 483 .

(Emphasis in Proctor-Silex.) As we read Proctor-Silex , Judge Smith found it unnecessary to make a precise application of either the “proximity rule” or the “premises rule” in finding the injuries compensable. The narrow holding there — found by this Court to be controlling in Pappas, supra — was as follows: “Where, as here, the claimant had arrived on the premises of her employer and was proceeding 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. Therefore, we hold the injuries sustained by [claimant] to have arisen out of and in the course of her employment.” At 489. (Emphasis added.) ⁹⁵ The decision in Proctor-Silex , while illuminating the issues involved in the instant appeal, is not here of controlling effect as in Pappas .

In Proctor-Silex , there was only one means of access to the plant from the parking lot; and this was also the situation in Pappas . The crucial question in the instant appeal is whether the use by the three men of the Penn Central tracks, rather than the available public streets, constituted the use of an off-premises place between the plant and the parking lot such as to render the injuries and death non-compensable. On this issue, under similar facts, there is no direct Maryland authority, and we look elsewhere for precedential guidance. Ill The Supreme Court of the United States has had occasion in two leading cases to rule on the compensability of injuries sustained on railroad tracks near the employees’ places of employment.

Cudahy Co. v. Parramore, 263 U. S. 418 (1923); Bountiful Brick Co. v. Giles, 276 U. S. 154 (1928). In both of these cases Mr. Justice Sutherland, writing for the Court, upheld the Workmen’s Compensation Act of Utah as not violating the Due Process Clause of the Fourteenth Amendment. In Parramore , the claimant’s only route to the plant in which he worked was across the tracks of the Rio Grande Western. His auto was struck by a train and he was killed seven minutes before he was to begin his work as an engineer.

The Court affirmed an award of compensation, without reference to the “going and coming” concept but with emphasis upon the hazard attendant upon ingress and egress: “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 ⁹⁶ 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 .

Mr. Justice Sutherland’s statement concerning claimant’s inability to reach the plant via another route would, standing alone, seem to preclude compensation in the case before us. In Giles , however, on facts not dissimilar to those presented here, the Parramore decision was extended when the Court affirmed an award of compensation to a worker who was killed as he took a short cut along the right of way of the Bamberger Electric Railroad. The opinion in Giles makes it clear that the employer was quite aware of, and did not object to, its employees’ usual selection of the short cut in preference to the “long, circuitous and inconvenient” alternate route. 276 U. S. at 157 . Mr. Justice Sutherland acknowledged that Giles “comes nearer the border line” of compensability than Parramore , but held that it nonetheless “falls within the principle of the Parramore case.” At 159.

In addressing the issues of an employer’s implied consent to its employees’ choice of an unsafe route and of the significance, if any, of the employees’ status as trespassers upon the railroad’s right of way, the following language is particularly instructive: “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. If it were necessary to ⁹⁷ strengthen the implication of consent on the part of the company to the crossing by any way its employees chose to take, it would be enough to refer to the testimony of the manager, who, knowing of the practice, did not forbid it, but in effect approved it by warning Giles simply to be careful. It is said that Giles was a trespasser upon the railroad right of way; but if that be established by the evidence, the answer is that, if the company, not being the owner, could under any circumstances defend upon that ground (Daltry v. Electric Light Co., 208 Pa. 403, 411-412 ), it cannot avail itself of the defense here because it consented to the trespass. ” At 159.

(Emphasis added.) Dean Larson notes that both of the above cases dealt with the Utah act, which, unlike the compensation acts of Maryland and most other states, provided compensation for employees whose accidental injuries arise out of or in the course of employment. See, Larson, § 15.13 where the author states: “It is quite possible to argue [as does appellant in the instant appeal] that the real issue therefore went no further than ‘arising out of ’ employment, which is easier to prove here than ‘course of employment.’ However, the language and tone of the decisions leave no doubt where the Supreme Court stands on the issue even if it should arise under the usual conjunctive coverage clause.” And,