193 A.D. 402 | N.Y. App. Div. | 1920
Lead Opinion
The business of the employer was to furnish burglar and watchman service. The duty of the deceased employee was to patrol the streets at night guarding and protecting stores' in the course of his employment. A burglary had occurred in a distant part of the city entirely unrelated to the work of the deceased. A police officer was in pursuit of the fleeing burglars. He shot at one of them but thé bullet missed its aim and accidentally struck and killed Heidemann, the employee. The bullet which caused his death was not intended for him but for the fleeing burglars. If it had struck the
The award should be reversed and the claim dismissed.
All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Kiley, J., concurs.
Dissenting Opinion
The employer was engaged in furnishing, maintaining and operating burglary alarm and watchman service, and the deceased employee was engaged in that service when he was shot, on Montague street, Brooklyn, by a probation officer of the police department. A burglary had been committed and two officers were in the immediate pursuit of the two burglars along Montague street, and an officer, hearing the men running, fired in the air to halt them; they paid no attention; he again shot at one of the burglars, with the result that the employee was hit and killed. The nature of the employment, the fact that the employee was going from ■store to store, seeing that the doors were closed and that no one was within at this hour of the morning, exposed him to a
In Matter of Redner v. Faber & Son (223 N. Y. 379, 382) the court considers with approval the English case of Dennis v. White & Co. (L. R. [1917] App. Cas. 479), quoting as follows: “ If a servant in the course of his master’s business has to pass along the public street, whether it be on foot or on a bicycle, or on an omnibus or car, and he sustains an accident by reason of the risks incidental to the streets, the accident arises out of as well as in the course of his employment. * * * The use of the streets by the workman merely to get to or from his work of course stands on a different footing altogether, but as soon as it is established that the work itself involves exposure to the perils of the streets the workman can recover for any injuries so occasioned.”
Concededly the injury was received in the course of the employment, and, in my judgment, the risk was so far connected with the employment that we may consider that it arose out of it. The award should, therefore, be affirmed.
Kiley, J., concurs.
Award reversed and claim dismissed.