177 A.D. 107 | N.Y. App. Div. | 1917
There is no dispute as to the fact that Valorous C. McCabe was an employee of the Brooklyn Heights Railroad Company, and, of course, this corporation operating a street surface railroad is engaged in a hazardous business under the terms of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). Mr. McCabe was, at the time of the accident in January, 1916, in the public highway on his way to commence work as a conductor, and was run down and killed by one of the defendant’s cars. It seems that Mr. McCabe went to work at seven-one in the morning and made what was known as a “swing,” and was relieved at ten-seventeen. He had no further duties to perform until twelve-thirty-two, but was required to be on hand five minutes before' that time, or at twelve-twenty-seven. The deceased appears to have left the premises of the employer and on returning to his duties at twelve-twenty-seven he rode as a passenger upon one of the cars of the employer for a distance of nine or ten blocks. He was on his way to the station of the employer. He left the car before it reached the station, going out by the front door, and while crossing the public highway, twelve minutes before time for him to report for duty, he was struck by another car of the employer and killed. The State Industrial Commission has
We are cited to many authorities outside of this jurisdiction ' which give some color to the contention that this award may be sustained, but it is to be remembered that there is a decided difference in the language of these various statutes; that while in the State of New York the injury must arise out of and in the course of the employment (§§ 10, 3, subd. 1), others merely require that the injury shall occur in the course of the employment. The Wisconsin act, which affords most of the favorable authorities, provides that “Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment ” (Wis. Laws of 1911, chap. 50, as amd. by Wis. Laws of 1913, chap. 599; Wis. Stat. [1915] § 2394-3, subd. 2), which gives room for a broader construction. (See 1 Bradbury W. C. [2d ed.] 334.)
The decedent, while in the general employ of the appellant as a conductor, was not at the time “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.” (§ 3, subd. 4.)
The award should be reversed and the claim disallowed.
All concurred; Howard, J., not being a member of the court at the time of the decision; Sewell, J., not sitting.
Award reversed and claim dismissed.
Since amd. by Laws of 1916, chap. 622.— [Rep.