182 A.D. 105 | N.Y. App. Div. | 1918
The facts in this case are that the employer was engaged in conducting .a wood and coal yard at Port Jervis, at a time when the statute did not include such business as a hazardous employment. The employee appears to have been a general laborer, who drove a team in delivering coal and wood whenever the occasion demanded, and who filled in his time when not thus employed in splitting or chopping wood, and doing such other work as was required around the yard, including the unloading of coal from cars. The claimant was injured while engaged in splitting or chopping wood, a chip or splinter flying and hitting him in the eye, and for this injury the State Industrial Commission has awarded him compensation. The employer and the insurance carrier appeal.
The employer’s general business was not within the Workmen’s Compensation Law at the time of this accident on April 19,1916; it was not rated as a hazardous employment. (See Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 2.) It seems to have been held in some of the earlier cases that the operation of a vehicle, incident to an otherwise non-hazardous business, was within the statute, and the attempt is here made to extend the principle so as to embrace the case of an employee who is injured while splitting or chopping wood which he or some one
There was some effort made to make it appear that the claimant was incidentally engaged in loading the wood, as he split it, into a wagon, but the claimant himself distinctly said that he could not be doing two things at a time, and that he was engaged in splitting wood. But group 41 of section 2 does not contemplate an injury resulting from the incidental loading of a wagon under the circumstances of this case. Group 41 contemplates the operation of vehicles as the principal business or occupation of the employer for pecuniary gain.
We are clearly of the opinion that under the circumstances of this case there was no liability, and that the award may not be sustained.
The award appealed from should be reversed.
All concurred, except John M. Kellogg, P. J., dissenting.
Award reversed and claim dismissed.