221 A.D. 199 | N.Y. App. Div. | 1927
Whether or not the accident, which resulted in the death of deceased, arose out of and in the course of his employment is the question.
The employer manufactured hammers. Deceased was a night watchman in its employ. He was struck and killed by a New York Central train at the Fifth street crossing, Little Falls, N. Y., on Sunday, May 24, 1925, at five-four p. m. The company’s plant was located on Mill street, which is south of and parallel to the tracks. The crossing is over six tracks and the southerly end is about fifty feet from the nearest entrance to the plant. The railroad company maintained gates and kept a gatetender there. Deceased lived on the northerly side. He had been accustomed to commence his work at six p. m. On this day, by a new arrangement, he had been asked to commence at five p. m., and he was hurrying. He was obliged to cross the tracks. That was the way for all. There was no way to cross by an overhead without going half a mile beyond. When he reached the tracks the gates were down. He went under the gates and was struck by a train and killed on the crossing.
The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
Van Kirk, Acting P. J., Hinman, McCann and Davis, JJ., concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.