Claim of Bergman v. Buffalo Dry Dock Co., 244 A.D. 839

Claim of Bergman v. Buffalo Dry Dock Co.

244 A.D. 839 | N.Y. App. Div. | 1935

Decedent and a fellow-employee were watchmen. They alternated in making a circuit of the plant each hour, one remaining in the pffiee to answer telephones. The hours of employment were from six o’clock in the evening untE midnight. Signal boxes were located through the plant operated by keys. The watchman who began the ten o’clock circuit ordinarily completed it about twenty minutes *840to eleven o’clock, then through mutual understanding, left the plant for the night, going to Ms home. Thereafter his fellow-employee would do the last circuit and await the arrival of the watchman who worked during the succeeding hours. On the night in question, decedent’s partner, through error, took the signal box keys to his home. This was discovered by decedent shortly before eleven o’clock; he left the plant for the purpose of going after the keys. Just before arriving at the residence where Ms partner lived, he was struck by an automobile, received injuries from wMch he died. The claim of the employer is that he had abandoned the employment, and the injury did not arise therefrom". The assistant superintendent states that the hours of these watchmen were from six until twelve o’clock, and he supposed they both remained at the plant during those hours. The surviving watchman testified that he was told by men that it was all right to leave as soon as the last circuit was completed, and the watchmen who came on the next succeeding trick knew of the custom followed by decedent and his partner. The deceased was not sent by Ms employer on the errand in question and it is, therefore, apparent that he abandoned his employment. The award should be reversed and the claim dismissed, with costs to the appellant against the State Industrial Board. Rhodes, MeNamee and Crapser, JJ., concur; Hill, P. J., and Heffernan, J., dissent and vote to affirm the award on the ground that the evidence justifies a finding that the employer knew that the watchmen left the premises after making the last round and that they had not been prohibited from so doing.