186 A.D. 647 | N.Y. App. Div. | 1919
The claimant was injured in the railroad yard of the Delaware and Hudson Company at Colonie, N. Y., at about noon on the 5th day of January, 1918. He was on his way across the tracks in the yard to get a mid-day meal at a dining car provided for employees. Finding that a train occupied one of the tracks, he started to cross underneath a car when the train moved and he was struck. Claimant asserts that he was at the time an employee of the Delaware and Hudson Company, and was injured while in the course of his employment.
The claimant had been employed by the appellant at its coal chutes at Colonie, N. Y., for 75 hours during the months of April and May, 1917. He was not again employed by the appellant until December, 1917, during which month he worked for 164 hours at its coal chutes at Carbondale,
The claimant was not an employee of the appellant at the time of the accident. He was not such an employee through the continuance of any contract made at Carbondale. He worked at that place by the day, and was paid by the day at an hourly and over-time rate. It must certainly be that a laborer not at work remains in an employment only by virtue of con
Even if claimant was an employee of the appellant, he was not acting in the course of his employment when injured. It is true that an employee is within the protection of the Workmen’s Compensation Law not only when actually at work, but also while upon the premises of his employer he is going to or from work or to or from a meal, or while at a meal which is had upon the premises during a temporary interruption of work. This claimant was not going to or from his work at the time of the injury, nor was he going to a meal during the interruption of his work, for he had as yet not worked at all. Finally, he was not going to a meal upon the premises, which he was permitted to take there, for his card to the boarding house was for supper and breakfast only, and both these meals he had already eaten. He had no right to a noon-day meal at the boarding house. Therefore,
The award should be reversed and the claim dismissed.
All concurred, except John M. Kellogg, P. J., dissenting.
Award reversed and claim dismissed.