155 N.Y.S. 759 | N.Y. App. Div. | 1915
The Commission has found as follows: “ On the 16th day of December, 1914, the day when Kris Larsen received the injuries which resulted in his death, he resided at West Brighton, Monroe county, New York, and was employed as a porter, elevator man and general utility man by the Paine Drug Company, a corporation doing business of manufacturing and selling drugs and chemicals and medicines and pharmaceutical preparations, at both retail and wholesale, in the city of Rochester, New York.”
The Commission has found that at the time of the accident the deceased “ was engaged in building a shelf near the elevator well, and while reaching into the elevator well to obtain a board which he had placed some place on the side of the well, he lost his balance and fell down the elevator shaft from the third floor to the basement, by reason of which he was instantly killed.” • A general utility man engaged in an establishment where drugs and chemicals are manufactured must be presumed to participate more or less in the work of the establishment. The deceased was engaged at the instant of the accident in building a shelf, but in order to do this it may have been necessary to handle the drugs and chemicals in the building; that is, move them so as to have room to build the shelf and after it was built place them upon the shelf. In fact the evidence before the Commission shows that the deceased was required to rearrange cases and do work of that character. In Matter of McQueeney v. Sutphen & Myer (167 App. Div. 528) this court said: “ If the employee is engaged in an employment declared hazardous by this law, but at times may work in a nonhazardous employment, it is not unreasonable that' the injury should be considered within the act if the employer fails to show all the facts. * * * If the employer had insured in the State fund, the insurance premium would rest upon the
We think it should be held that the claimant’s intestate came to his death while engaged in one of the hazardous employments enumerated in the act, and that the award of the Commission should be affirmed.
All concurred, except Smith, P. J., and Woodward, J., 'dissenting.
Award affirmed.