City of Milwaukee v. Industrial Commission

Owen, J.

It is the contention of the appellant that the deceased was not performing services growing out of and incidental to his employment at the time of the accident. It is manifest that he entered upon his employment when he reported at the tool house and obtained the tools with which he was to work during the day. Appellant contends, however, that he should have followed the cinder roadway rather than the railroad track in proceeding from the tool house to the place of work. The evidence shows that employees similarly engaged followed either the roadway or the railroad track, as best suited their fancy, with the acquiescence of those in charge of the work on the part of the city. It is true the evidence shows that a gang boss cautioned Schmitt against walking on the track for the reason that he was deaf. However, this appears to have been a mere personal caution — a matter of friendly advice, and was not in the nature of a direction or order. This situation cannot be distinguished in principle from that under consideration in Monroe Co. v. Industrial Comm. 184 Wis. 32 , 198 N. W. 597 . If there be any distinction, .the situation here is less favorable to. the employer. In this case the employee was more clearly performing services growing out of and incidental to his employment than was the employee in the Monroe County Case. In the latter case it was not so clear that the employee was performing such services in proceeding from the camp, where he had eaten dinner, to his place of work. Here the employer required the em *313 ployees to report at the tool house in the morning, secure their tools, and proceed therefrom to a point on the fill where they were expected to work during the day. That in thus proceeding the employee was performing services growing out of and incidental to his employment is, not debatable. .

It is contended here, however, as it was in the Monroe Case, that the employee did not take the route provided for him by the employer, in this case the cinder roadway. There is no evidence that the employees were directed to take the cinder roadway or that they were prohibited from walking on the railroad tracks. As stated, the evidence shows that they took either route with the acquiescence of those in charge of the work. It being necessary for. the deceased to go from the tool house to his place of work, and having come to his death while so proceeding along a customary route and one not prohibited, it follows that at the time of the accident he was performing services growing out of and incidental to his employment.

By the Court. — Judgment affirmed.