158 N.E. 879 | NY | 1927
The workman, James H. Norris, for whose death this claim was filed, was employed to unload cans of milk from railway cars, placed in the yard of his employer, the New York Central Railroad Company, and to deliver the same on board motor trucks of consignees. The yard was situated in New York city between Twelfth avenue on the west and Eleventh avenue on the east, and was bounded on the north by Thirty-fourth street and on the south by Thirty-second street. Two private roadways, designated respectively "A" and "B," crossed the yard from east to west, connecting Eleventh and Twelfth avenues. Roadway A was about one hundred feet to the north of roadway B and was separated therefrom by six lines of tracks, running easterly and westerly. Roadway A swung down to meet roadway B at Eleventh avenue. At about the point of convergence, on the edge of Eleventh avenue, stood a flag shanty. This shanty was warmed by the heat from a stove. A short distance to the south, on the westerly edge of Eleventh avenue, was a yardmaster's office. In this building there was a toilet. On the night of October 1st, 1925, the workman Norris was assigned to unload milk cans from a car placed on a railway track just north of roadway A and about 500 feet west of Eleventh avenue. Norris came to work at about eleven o'clock P.M. He first checked up on the number of cans, as was his duty, and reported the count correct to his foreman. He then proceeded to deliver cans on board a consignee's motor truck. It is conceded that he made one delivery *310 of cans; that other deliveries remained to be made; that he could make no more until the motor trucks of other consignees arrived. At about one o'clock A.M. Norris was seen walking on roadway A easterly toward Eleventh avenue. Shortly afterwards his body was discovered on roadway B, about 500 feet west of its convergence with roadway A. Norris was in a dying condition and shortly afterwards died. The proof justified the conclusion that Norris had been struck at Eleventh avenue, where the two roadways converged, by a fast-moving motor truck going west on roadway B; that his body had been carried on the fender of the truck until, when the truck circled back, it was deposited on roadway B at the point where it was found. The question arises whether the State Industrial Board justly found, under the circumstances stated, that Norris was in the course of his employment when the motor truck ran him down.
The fact that Norris was not actually at work when the accident occurred does not impugn the finding; nor does the fact that he was, at the time, absent from the precise spot where his work must have been performed. Due to the nature of his employment, there was a temporary cessation of the work. Norris was obliged to suspend until such time as further motor trucks, to which he could make delivery, might arrive. During the interim he was not required to remain a prisoner caged in the freight car containing the cans to be unloaded. It has been held that a laborer sitting in the doorway of his employer's plant during the idle noon hour is in the course of his employment. (Matter ofDomres v. Syracuse Safe Company,
Was the Industrial Board justified in finding that Norris journeyed to Eleventh avenue animated by one of the purposes indicated, rather than by a purpose personal to himself? There is a well-recognized common-law rule that a relationship, such as that of principal and agent, once shown to have existed, may be inferred or presumed to have continued until its non-existence has been established. (1 Greenleaf on Evidence [16th ed.], secs. 41, 42; Wigmore on Evidence, sec. 2530.) The presumption has been applied to the relationship of master and servant in two well-considered English cases (Astley v. Evans Co., Ltd., 4 B.W.C.C. 209, and Rigling v. Minister of Munitions, 14 B.W.C.C. 1). In the Astley case a train of freight cars, pushed by an engine, overtook another train on the same rails, and the two trains ran buffer to buffer. A brakeman on the rear train tried to get aboard *312
the train ahead, but stepped between the buffers and was killed. There was no evidence as to his purpose in trying to board the forward train. However, there was proof that the cars on that train had steps from which to alight, while the cars on the rear train had none, and that by alighting the brakeman might have been enabled to turn a switch, as was his duty. An award for the death of the brakeman was upheld. It was there said by FLETCHER MOULTON, L.J., that "where the workman is engaged in his master's work up to his death, and the last acts that are known are consistent with the continuance of that work, it is for the person who alleges a cessation of his working for his master to prove it." The facts of the Rigling case are very similar to those in the case at bar. Rigling was a workman in the employment of a railroad. He was engaged at work on the south side of four sets of railway tracks running from east to west. On the north side of the tracks there was a mess room and a lavatory. Rigling was entitled to go to either of these places during the noon hour. During that hour he did cross the tracks for some purpose unknown. On his return he was struck by a passing train and killed. An award for his death was sustained. Lord STERNDALE, M.R., said that he was troubled by the question whether it was not for the claimant to show that Rigling was making the crossing for some purpose arising out of his employment; that, on the whole, he thought it was not; that under the circumstances "although there may be a gap between that and his death which is not filled up, it should be inferred that he met his death in doing something arising out of the course of his employment." The case of Smith v. Oesterheld Son (
The order of the Appellate Division should be reversed and the award of the State Industrial Board affirmed, with costs in this court and in the Appellate Division.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O'BRIEN, JJ., concur.
Ordered accordingly. *314