Norwich bulletin., 1918-06-19
MAKES AWARD IN MOOSUp CASE
Commissioner Donohue Finds For Widow in Compensation Claim =. Frank Asseln, Woolen Mill Employe, Was Fatally Injured While Walking Railroad Track to Get Tools at His Home.

 guilty of serious and willful miscon- duct. I
 Under the British act, in ease of l death, the question of serious and 1 willfil misconduct cannot be used as l a defense by the respondents as the 1 decedeHt's testimony must necessarily l be lacking and it gives the depend I ents no opportunity to disprove such claim by the testimony of the de- 1 ceased employees.
 While we do not follow strictly the British act in this respect, still in or der to prove the question of serious and wfllful misconduct there must be shown an almost deliberate act on the part of 8 decedent or injured en1- ploye to bring about bodily injury to himself.
 The term ''wilifui misconduct" as used i'll the compensation act means more than negligence, even gross neg ligence. To be guilty of willful mis- conduct the employe must do wrong Intentionally consciously, not simply in a careless manner or in a wrong way. It must amount to foolhardiness or dare-deviltry. In the present case the decedent simply proceeded to his home to get tool just as he had on so many previous occasions, going the shorter route as was his custom, and there is nothing to show that he was careless in his movements. or WiIiful in his choice of routes as he took his usual route, he probably exercised or dinary thoughtfulness in his proceed ure. and there is certainly nothing to show that there was any intent on his part which would result in a se- rieus accident.
 Knew Warning HahituaIly Disresarded In the present case the testimony all goes to show that the employer knew that this warning about walking the tracks was being disregarded con- tinuaily as the witness for the re- spondent testified that he had told the decedent two hundred times or more not to go by that route, and even on the day of this accident this same witness testified that he had told him to go home and get his axe and he presumed that he would go by way of the tracks although he testified that he told him to go by way Of the road, regarding which testimony I have a certain amount of doubt. The testi- n1ony in general, however, shows that it was common knowledge to the eIn- ployer and that the employer permit ted the eH1ploye in question to go home for his own tools, and while they maintain that they cautioned him about going by way of the tracks still they were we'll aware that that was the route which he continually took and he had never been penalized in any way for 50 doing, not even so | much as a threat of penaliZing him for doing this thing, which at the hearing the respondents maintained was so dangerous, but which they still allowed the eInploye to contin- ually persist in with their full knowl- edge, and against which practice they ] did nothing more than make a very weak and verbal protest, which was not of sufficient force, apparently, to make any impression upon the em- ploye whatever. It almost raises a doubt in one's mind as to whether any such protests were made.
 From the evidence I cannot find 1 that there was really any very defi- mite rule about empioyes walking on the railroad tracks, but it is found l that there had been some verbal in- 1 structions given the Gecedent, if we are to accept the testimony of the re- spendents' witness. To my mind a warning or piece of advice or even i instruction cannot be considered a 1 rule unless 1t is established in some sufficient manner so that it will be ] properly brought to the attention of l notice conspieuousiy posted or by
 way of a penalty for violation of
 same. In this case. then, there was l to my mind no rule that this empioye
 CT any other at this plant should nol go by way of the railroad tracks 1 There was simply occasional warn 1 frlgs or suggestions about so doing but
 such warnings or suggestions are sn far from what we could reasonably call established and enforced rules that it would be unjust to the claim ant to attach very much importance to them. If the danger was so grea, 1 have us believe. (noW that the actual fatality has occurred) then he was very FenisS in his duty fer not be- ing more strict in the enforcement of some penalty to prevent any such l viel2tios as is claimed. I am in 1 clined to the belief that the serious ness of this situation only occurred ir reality to the mind of tine one whf was so liberal in his cautions to the decedent after the fatal accident had actually occurred, which strikes ma
 as far too late to be of any service 1 Errors of judgment fall far short ol
 acts of serious and Willful miscon
 duct.
 |. Insufficient Warning.
 After an injury has occurred
 (which is due in reality more to as
 error of judgment than lack of care fpl conduct on the part of the enl
 ploye which could not be character
 ized as recklessness or foolhardiness
 nor could there be any suicidal inten
 shown to exist on the part of the em
 ploye1, after such an injury has oc cured, then it is not fair for the ern ployer to step behind the defense 0 serious and wiliful misconduct, whel
 as a matter of fact he is more cuba i; hle for not enforcing a rule and pen alizing an enploye for violating same In the present case everything show
 that the decedent was working ia hi employers interest and conservini
 time by taking the route which h chose to get the tool, and to get bacl in the quickest way, and his evesy ac tien shows that he was giving no con ;: sideration at all to violation of rules but was concerned wholly with tn ss work which he was doing in the in terest of his employer.
 .. To my mind. as stated before, tn 1, decedent was guilty of error of judg nest rather than of serious and will : no doubt but what he had been eau : tiened a number of times about usin , this railroad track. if we are to be iieve the testimony of the witnesse. There was no effort at enforcement 0
 any rule. even if such a. rule could b found to have existed. nor was h
 ever penalized by a discharge fror
 the employers services although h . had walked these same tracks wit 2 his employers knowledge almost con 2 tiBuslly for some l3 or fl years tha f he had been in the respondents em i, . piey.
 ! Although it can be said that a will : ful violation of a rule of safety mad ' hV the rrnnnf alifhnrity when fha