The opinion
Dissenting Opinion.
Pfaff, C. J.
The question involved in this case is whether the injury arose “out of and in the course of the employment.”
The employment of decedent ceased at noon when he left the premises of the appellants and returned to his home for lunch,. His employment was to have *93 been resumed when he reported back to the packing shed at 1:00 P.M. The fatal accident intervened. The decedent was on his own. He elected to return home for his lunch rather than eat lunch on the premises. He had the right to elect which route he would pursue in returning to his employment. He was not required to travel over the route he elected. In this connection it should be borne in mind that there is nothing contained in the stipulation of facts and, therefore, there is no evidence that the route which the decedent elected to follow in returning to his employment was the ordinary route used by the decedent and other employees as ingress and egress to the packing shed or the orchard. It is true that this route was available if employees elected to use it, but they were not compelled by the appellants to use this route. Mitchell v. Ball Bros. Co. (1933), 97 Ind. App. 642 , 186 N. E. 900 ; Moore v. Sefton Mfg. Corp. (1924), 82 Ind. App. 89 , 144 N. E. 476 .
One of the questions involved in this case is whether or not the decedent was on the premises of the appellant at the time of the fatal accident. Under the stipulation of facts the Baltimore and Ohio Railroad Company had an easement through the real estate owned by the appellant, and “defendants at no time had any control over the manner in which the railroad company operated its trains over said easement and right of way and had no control whatsoever over the real estate described in said easement.”
When the term “on the premises” is used in this class of cases, it means on the premises where the employee is employed or where the employee is compelled by the employer to be for the purpose of ingress and egress to the premises. In this instance the appellants did not compel the employee to be at the place *94 where the fatal accident occurred in order to reach the place of his employment.
Appellee’s decedent by his own election created the hazard which resulted in his fatal injuries. Had he crossed the railroad tracks at a point where the crossing was protected by flasher lights, the accident would not have occurred but he elected to cross at the unprotected crossing. This hazard which he created himself was not a hazard created by his employer but was self-created.
The accident appellee sustained was not incidental to his employment and, therefore, a case has not been made entitling the appellee to recover and that the award of the Full Industrial Board should be reversed.
Note. — Reported in 152 N. E. 2d 257 .
Transfer denied in which Bobbitt, C. J., dissents.