| N.Y. App. Div. | Nov 14, 1956
Appeal by the employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board. The sole issue is whether the accident sustained by claimant arose out of and in the course of his employment. Claimant, who was 17 years of age, was directed by his employer to join a group of other employees of his age on an upper floor to straighten out the place and wait until closing time. While the boys were on the upper floor, one of them picked up a steel bar which was on the premises and challenged claimant and the other hoys, in a test of strength, to try to bend the bar against a post. While claimant was attempting to bend the steel bar against the post, the bar slipped and struck him in his left eye, causing an injury which resulted in complete loss of vision of that eye. There is sufficient evidence in the record to support the board’s finding of fact that the accident arose out of and in the course of employment. Young lads whose jobs call for expenditure of physical energy cannot be expected, during slack period, to sit in idleness and gossip. The employer must expect that they will engage in some form of activity. Here it was natural for claimant to attempt to match his strength with his fellow employees and to use the objects found on his employer’s plant to do so. The risk was a risk of the employment. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Coon, Halpern, Zeller and Gibson, JJ.