Claim of Clapham v. David

232 A.D. 458 | N.Y. App. Div. | 1931

Whitmyer, J.

Whether or not the accident for which the award was made arose out of and in the course of claimant’s employment is the only question.

The employer conducted a household and claimant was in her employ as a nurse, having the care of her daughter, five years old. On December 29, 1929, in Bermuda, claimant was injured in a fall from her employer’s bicycle, while she was riding it, about one-quarter of a mile from the place where they were boarding. In her report the employer stated that claimant was “ injured in regular occupation ” and “ fell from bicycle against stone wa,H, dislocating shoulder and fracturing bone, injuring main motor nerve of arm.” On the hearing she testified that claimant “ had regular physical care of the child all day long ” and “ had no time off because we were on a holiday — not from 7 to 7, but absolutely twenty-four hours a day.” She remained in the course of her employment. (Matter of Norris v. N. Y. C. R. R. Co., 246 N. Y. 307; Matter of Fuller v. Title Guarantee & Trust Co., 223 App. Div. 173.)

In addition, there is evidence that the child “ had been extremely obstreperous ” on that day and had made all, including claimant, nervous and irritable, so that her employer “ definitely urged ” her “ to get away for a while,” “ sending her out, to get her in a little better frame of mind.” (Matter of Redner v. Faber & Son, 223 N. Y. 379, 381; Scanlon v. Herald Co., 201 App. Div. 173, 174.)

There was some evidence that claimant’s injury arose out of and in the course of her employment.

I think that the award should be affirmed.

AH concur.

Award affirmed, with costs to the State Industrial Board.