Borin's Case

227 Mass. 452 | Mass. | 1917

Braley, J.

It is settled that personal injuries suffered in the performance of acts within the scope of his employment which have not been forbidden by the employer and are found to have been necessary to the physical welfare of the employee while in the discharge of his duties, are deemed to have arisen not only in the course of, but out of his employment. Von Ette’s Case, 223 Mass. 56, 60, 61, and cases there cited.

The insurer also concedes that “the securing of fresh air . . . was incidental to his work,” and the finding of the Industrial Accident Board that by reason of excessive heat in the room “fresh air became a necessity” is warranted by the evidence.

While no question of negligence or assumption of risk is presented, yet it is reasonably certain that to pass over the top of the dye tubs filled with hot water constantly emitting steam would expose the employees, even if the tubs were covered, to the hazard of personal injuries for which compensation could be claimed. And the employer had the right to anticipate and guard against such events by causing the lower or bottom “sashes in - the windows” back of the dye tubs to be “ nailed down so that the men would not be crawling over the tubs to open the windows.” It was undisputed, that the window in question could not be opened except by detaching the slat by which it was fastened, and that the accident happened as the claimant, after passing over the tubs, was attempting to remove the slat by the use of a chisel and hammer, when he “was struck in the eye by a piece of the chisel,” caused by a blow of the hammer.

The workmen’s compensation act indeed should be construed liberally, yet contracts for personal service are not thereby abrogated nor is the employer thereby restricted from enlarging or diminishing his business, and from extending or limiting accordingly the field of employment. It may often happen that because of defects which must be remedied, or of necessary repairs, a portion of the works is “ shut down,” although the remainder continues in operation. If under such circumstances and with knowledge of them an employee solely for his own personal comfort, and in the exercise of his discretion, is injured while on the part, the use of which has been shut off or forbidden, it would be going far to say, that he is entitled to compensation because the accident arose out of his employment. The claimant therefore must be held to have worked in the dye house as fitted for use by his employer, who had the absolute right to close the windows temporarily, or permanently, so that the premises should be used as if those windows formed no part of the construction or equipment, of which conditions he had implied or constructive notice. The fastened window spoke as plainly to him that it was to remain closed as if a printed notice had been posted, or an oral order had been given, the intentional violation of which ordinarily would have precluded compensation.

If it be assumed that the prohibition was applicable only to normal working conditions, and was never intended to be operative when more ventilation became so necessary that if not obtained the employee might be obliged to cease work, the uncontroverted evidence abundantly shows, that the “bottom” windows on the other side of the dye tubs which properly could have been opened by him remained closed.

We do not intend however to intimate that an employee is not within the statute where, being suddenly called upon to save himself from threatened loss of life or limb or serious bodily harm, he necessarily violates a rule appertaining to the sphere of his employment and is injured.

The claimant having failed to show that the accident arose out of his employment, the decree awarding compensation must be reversed, and the claim disallowed.

Ordered accordingly.