155 N.Y.S. 12 | N.Y. App. Div. | 1915
Lead Opinion
While the evidence before the Commission that the deceased was on his way to have his watch inspected, under the provisions of the employer’s rule, is meagre and uncertain, we will assume the facts, for the purposes of this appeal, to be as found by the Commission. The findings are that “ at the time of receiving the injuries resulting in his death Edward De Voe resided at Mohawk, Herkimer county, State of New York, and was employed as a motorman by the New York State Railways, a street railway corporation'.
“2. On September 12th, 1914, at about 4:50 p. M., and after deceased had finished his work for the day, and as deceased was hurrying from the car barn at Mohawk to catch a car of the New York State Railways, which was just coming to a stop before the car barn, deceased was struck by an automobile running near the curb, receiving injuries from which he died three days later. The purpose of the deceased in taking or attempting to take a car was to proceed to Herkimer to have his watch tested. It was understood when employees were hired that they should have free transportation on the cars of the company. It was a rule of the company (employer) that the men must have their watches tested once in every two weeks under penalty of
“ 3. The injury received by the deceased was an accidental injury arising out of and in the course of his employment and resulted in his death,” etc.
The conclusion of law is reached that the “claim comes within the provisions of chapter 67 of the Consolidated Laws, being chapter '816 of the Laws of 1913, as re-enacted and amended by chapter 41 of the Laws of 1914, and amended by chapter 316 of the Laws of 1914, known as the Workmen’s Compensation Law.”
The employer, which is its own insurance carrier, appeals from the award, and, while contending that the facts found are not supported by the evidence, in so far as they relate to the deceased’s intention in running to the car, urges that the conclusion of law is erroneous. This, it seems to us, is the only question requiring consideration. Is the claim within the provisions of the statute ? The conclusion of fact, which is a mixed question of law and fact, that “the injury received by the deceased was an accidental injury arising out of and in the course of his employment and resulted in his death,” is not conclusive upon this point. While the statute is of a remedial character, and is to have a liberal construction, no doubt, for the purpose for which it is designed, it is not to be extended by implication to accidents not clearly within the language of the act. It is true, of course, that section 10 of the act provides that “ every employer subject to the provisions of this chapter shall' pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury,” but this is not the controlling provision of the act. The Legislature has not attempted to impose upon employers the. obligation of insuring their employees generally against accident. The language of section 2 of the act, which is the controlling section, declares
Assuming that the deceased was about to go to have his watch tested, and that he was still in the employ of the corporation for that purpose, the occupation was not of a hazardous nature as defined by the statute, or as understood in the common experiences of mankind. The statute was intended to protect the motorman and the conductor and the men engaged in the physical operation of an essentially hazardous employment, while engaged in such employment, and when the person. employed ceased to be engaged in the hazardous employment he came within the ordinary operation of law. It is conceded here that he had closed his day’s work and had signed his name to the register denoting that fact, and had reached a point in the public highway where he was run down, not by any street railroad car, or by anything over which the employer had control, but by an automobile in the control, presumably, of some third person. He was not, therefore, in the employ of the New York State Railways within the language or intent of the statute. An “ employee ” is defined by subdivision 4 of section 3 of the act as “ a person who. is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants.” It is the fact of being engaged in the hazardous employment which gives the right to compensation, and not the fact that the employer is “ carrying on or conducting the same,” and that the employee is injured while performing some incidental duty in connection with such employment. “ Injury ” and “ personal injury ” are defined to “mean only accidental injuries arising out of and in the course of employment ” (§ 3, subd. 7), and it certainly cannot be said that being run down by an automobile in a public highway, after the day’s work has been completed, is an “accidental” injury “arising out of * *" * [the] employment. ” It had no relation whatever to the employment; it happened “ away from the plant of his employer ” and at
He was not an “employee” within the definition because he was not at the time of the accident “engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant. ’ ’ He was not engaged in any service of the employer whatever. Assuming that he was intending to go to Herkimer to have his watch tested, he was not employed for this purpose; it was merely a condition on which he was employed at all that he should have his watch tested at intervals of two weeks, just as the employer might have it a condition that he should have his hair cut or his nails manicured at stated intervals. He had completed his day’s work. What he did after that might have some bearing upon
The award should be vacated and set aside.
Kellogg, J., concurred in result in an opinion in which Lyon, J., concurred; Smith, P. J., and Howard, J., dissented.
Concurrence Opinion
I do not think the intestate received his injury while performing any part of his duty as an employee of the appellant. If the prevailing opinion means that there could be no liability unless the deceased met his death while actually operating his car as a motorman I cannot agree with it. I think that while he was performing any service for the master connected with and growing out of his employment, and a part of his duties as such employee, it is immaterial whether he was actually operating his motor at the time. Having his watch tested was not a part of his service to the master. He was simply performing a condition which it was necessary for him to perform to qualify him to remain in the employment. I, therefore, concur in the result.
Lyon, J., concurred.
Award reversed.