WOOLWORTH CO v. INDUSTRIAL ACCIDENT COMMISSION (1940)

While employed by F.W. Woolworth Company as a stock clerk in one of the stores of the employer, Alva Sivley suffered an accident. He applied to the Industrial Accident Commission to fix the amount of his compensation. The commission made an award in his favor against the Travelers Insurance Company, the insurance carrier of the employer. The latter applied for a rehearing. That application was denied and the insurance carrier has applied to this court for a writ of review.

That Alva Sivley was employed by the F.W. Woolworth Company and that he suffered an accident while so employed are admitted facts. However, it is earnestly contended that the evidence does not support the finding that the accident “arose out of” said employment. The determination of that claim involves a consideration of the following facts:

The F.W. Woolworth Company maintains a store facing Post street and extending to the rear abutting on Maiden lane. The building is five stories or more in height. It is known as the Rosenthal building. Adjacent to that building is one occupied by the Liebes Company. Between the two buildings is a light well or court. The Woolworth Company used the basement and main floor of the Rosenthal building for sales rooms. On the third floor it uses some of the space as a storeroom. On the fifth floor it uses two rooms for storage. Those two rooms are numbered 514 and 515. They are located in the southeast corner of the building. A small hall leads from west to east to serve both rooms. At the extreme western end of that hall is the freight elevator. As one steps out of the freight elevator another hall extends to the left, that is to the north. Down that hall twenty-five or thirty feet distant there is a row of four windows facing the above-mentioned light well. The windows are two feet seven inches from the floor and the window ledge is eighteen inches wide. The windows are large and the glass is set in metal casing. From the window sill the space is unbroken on the outside down to the bottom of the windows in the second story. It is the custom of the management that when the store is closed in the evening the outside doors and windows are all closed.

The applicant is a young man about twenty-seven years of age. He is about five feet seven inches tall and slender in build. For about three years he had been employed by the F.W. Woolworth Company. His work had been principally in duties performed in the storeroom on the third floor. On November 21, as the day drew to a close, he inquired if there was to be any night work and if so he wanted the employment. His request was granted. After his ordinary day's work was done he went to the lunch room, had an evening meal, and returned to do the work that was on hand. That work consisted of going to the storeroom on the fifth floor, collecting certain display panels and taking them to the main floor and basement floor for the purpose of making a display of holiday goods. The panels were made of cardboard and were light. In a short time other employees arrived and all engaged in putting the panels in place. To do that work required the use of a ladder and making certain wire connections. By ten o'clock in the evening the necessary panels had been put in place and there were some extras that were not needed and which were to be returned to the fifth floor. Sivley commenced to take them back. He put several in the freight elevator and took them to the fifth floor. While there he heard a buzz that indicated he was needed below. He set the panels off on the floor in the corridor on the fifth floor and then took the elevator below. On arriving at the bottom he found that one of the employees wanted Sivley to let him out. After doing so, Sivley locked the door, returned to the elevator, and started to return to the fifth floor. In doing his work it was his habit to carry a lead pencil behind his ear. While engaged in placing the panels he used a pair of pliers which he carried in his pocket. He testified:

“I started up and found it was getting stuffy in there. I needed air, and evidently I walked down the hall and opened a window for air, and when I did why that is the last I remember, and I came to down there in the light well.

“Q. And then when do you remember it getting stuffy, that it was getting stuffy and that you needed air? A. When I started up in the elevator.

“Q. When you started up in the elevator? A. Yes, from the basement. Just after that, oh, everything was hazy, I don't know.

“Q. Everything is hazy since then? A. Yes.

“Q. And the next thing you know is when you were picked up, is that right? A. No, I came to down in the light well and I was hollering for help. *

“Q. Then the last thing you recall is when you started up in the elevator? A. Started up, yes. I don't know how far I got when I got this feeling at all.

“Q. Then you don't want us to understand you remember you went over and opened this window, that you started to the window even. A. No because I don't know a thing about it. I don't want you to understand I even think I know because I don't know a thing about it. * A. It (the light well) goes off from the left from the elevator.

“Q. And it isn't in the direction that you would have gone if you had been going to the rear where the stock was put? A. No sir.

“Q. Down the other way? A. Down the other way, yes sir.

“Q. And as far as anything connected with taking care of these articles that you brought up from the basement there wouldn't be any need of your going down this other hallway, was there? A. Why No.”

The foregoing testimony was repeated but substantially to the same effect.

Approximately thirty minutes after Sivley let his fellow employee out of the door a tenant of the Liebes building heard Sivley calling for help. Others rushed to his assistance. He was found at the bottom of the light well level with, and just outside of, the windows on the second floor.

He was at once removed to a hospital and on examination it was found he had suffered numerous injuries—broken bones—six in right foot, one in left, three in pelvic region; left elbow dislocated and many bruises and scratches. One of the doctors who examined him expressed the opinion that in falling he fell feet first. Almost immediately after the accident an examination was made on the fifth floor and it was found the first window to the left of the elevator was open. The pliers above mentioned were lying on the window sill and Sivley's pencil rested in between the handles of the pliers.

As to the ventilation of the premises it should be noted that the room on the main floor is sixty feet by one hundred feet and the ceiling is twenty-five feet high. The other rooms on other floors have a ceiling about fifteen feet high. The testimony showed that when the elevator was operated there was an unusually heavy draft. While performing their work during that evening some of the employees took off their coats but none complained of heat or suffocation. The report of the weather bureau showed the temperature for San Francisco as being from fifty-four to fifty-six degrees Fahrenheit between six o'clock and midnight. There was no testimony that any artificial heat was applied to the building during those hours. Rooms 514 and 515 where the panels were to be stored were well ventilated by two open windows on Maiden lane and through the transom, the glass in which was broken. The transom is about thirty-eight by twenty-three inches.

Ordinarily the applicant worked from about 7:30 in the morning until about five in the evening. Sometimes he worked overtime. As shown by the time cards he had not worked overtime at all during the previous week. On Saturday he was released at noon until Monday morning. He worked until about half past ten on Monday night and the accident occurred at about half past ten on Tuesday night.

While the claimant testified that in the elevator he became “foggy”, he did not testify that at any time he fainted. His contention was in effect that he suffered a mental lapse. There was not a particle of evidence, medical or otherwise, showing the nature of the mental lapse or the cause thereof. In particular there was no evidence that the work he was performing did, or could, cause a mental lapse. In the absence of medical testimony there is no causal connection between the symptoms of exhaustion and want of fresh air, on the one hand, and the affliction of a mental lapse, on the other. Veloz v. Fidelity–Union Casualty Co., Tex.Civ.App., 8 S.W.2d 205, 206, and 73 A.L.R. 528 and cases there cited.

The claimant testified that after the mental lapse commenced he remembered nothing until he called for help. Assuming, as we must, such facts are true, the claimant is not helped. If he was unable to testify to facts establishing the several elements of his cause of action, he should have produced the testimony of others. The fact he was injured did not, standing alone, establish a case in his behalf. As stated in Mello v. Industrial Acc. Comm., 84 Cal.App. 233, at page 236, 258 P. 104, at page 105, “The burden was upon the petitioners ‘to show that the injury arose out of as well as in the course of the employment; and there is no presumption * that because an injury occurs in the course of the employment it arises out of or because of that employment.’ G.L. Eastman Co. v. Industrial Acc. Comm., 186 Cal. 587, 593, 200 P. 17, 19.” Moreover, as already shown, from the instant the claimant left the door of the elevator and turned to his left instead of going straight ahead to rooms 514 and 515, he stepped aside from his employment and was not acting within his employment. The nexus was broken. He has not in any manner excused or explained his act. If he was in truth and in fact seeking fresh air the record shows his line of work would take him directly to fresh air in rooms 514 and 515, the place where the panels were to be stored and which was distant from the elevator door about the same distance as the window out of which he subsequently fell.

In the briefs a fainting is spoken of. The claimant did not testify that he fainted and there was no evidence of a “fainting”. That ailment is defined in Dorland's American Illustrated Medical Dictionary as “* a temporary suspension of consciousness due to a cerebral anemia”. But the claimant does not say that at any time before he struck the bottom of the light well he was unconscious. The uncontradicted evidence is that while in the elevator, just after leaving the basement, he felt “foggy”. The evidence shows he then went to the fifth floor, opened the elevator doors, entered the hallway, turned away from his place of work, passed twenty-five or thirty feet to the left, opened the window, placed his pliers and pencil on the sill, and fell into the light well. Such facts do not, within any proper meaning of the words, show “a faint” or “a fainting”.

In support of the award the respondents quote testimony to the effect that Sivley was exhausted from long hours of work; that when the elevator left the basement he felt “foggy and that he needed air”; and that his subsequent acts were done to administer to those complaints. That an employee has a right to seek fresh air is settled law. Honnold on Workmen's Compensation, vol. 1, p. 381. But in that connection the law is also well settled that an employee may not do unreasonable acts and claim they arise out of the employment and he may not create a new and added peril to which he by his own conduct has needlessly exposed himself. (71 Cal.Jur., 657.) “The accident must be one resulting from a risk reasonably incident to the employment.” Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 685, 158 P. 212, 213, L.R.A.1916F, 1164. In Monahan v. Hoage, 67 App.D.C. 174, 90 F.2d 419, 421, the rule is clearly stated. In that case the United States Court of Appeals for the District of Columbia applied said rule in a case, the facts of which were closely parallel to the facts in the present case.

Finally it is argued that as Sivley became “foggy” it will be inferred he needed fresh air; that it will then be inferred he went to the window for the purpose of getting fresh air; and then it will be inferred he fell out of the window. To that argument there are two answers. One is that an inference cannot be predicated on an inference. The other answer is that a man five feet seven inches tall, standing by it, cannot fall out of a window which is two feet seven inches from the floor and which has a window ledge eighteen inches wide. The center of gravity of his body will be well within the building and not without it. Moreover, if Sivley fell out of the window he would have gone down head first and not feet first. If, after he raised the window sash, he sat on the window ledge, swooned, and fell out of the window, his claim is not better. He was not entitled to take such a position and thus increase the risk of the employer. Monahan v. Hoage, 67 App.D.C. 174, 90 F.2d 419, 420.

The record contains no evidence supporting the finding contained in the award that Sivley suffered injuries “arising out of” his said employment.

The award is annulled.

STURTEVANT, Justice.

We concur: NOURSE, P.J.; SPENCE, J.