160 N.Y.S. 811 | N.Y. App. Div. | 1916
The sole question at issue upon this appeal is whether the death of the deceased can be said to have arisen out of his employment. He was engaged in the occupation of driver in the business of teaming, trucking and livery. While working for his employer in collecting dirt from the streets of Syracuse, N. Y., he stepped upon a board containing a rusty nail as he was getting up into his wagon. The nail pierced his shoe and went into his foot. The wound became poisoned therefrom and as a result his entire system became infected with tetanus germs, causing his death. The State Industrial Commission found that the injuries were accidental and arose out of and in the course of his employment. The defendants challenge the correctness of the conclusion that his injuries arose out of his employment and cite in support of their contention the cases of Matter of Newman v. Newman (218 N. Y. 325); Sheldon v. Needham (7 B. W. C. C. 471); Kitchenham v. S. S. “Johannesburg” (4 id. 311); Mitchell v. S. S. “Saxon” (5 id. 623) and Matter of De Filippis v. Falkenberg (170 App. Div. 153); and the defendants contend that there can be no liability as the accident arose from a common risk to which any person was equally exposed who happened to travel that way on foot without regard to the nature of his employment.
The general distinction between the cases cited, and the case at bar is that in the former it was held that the injuries were not received while the employee was engaged in one of the hazardous occupations specified in the Workmen’s Compensation Law, or in doing an act incidental thereto. In the case at bar the deceased was engaged in the operation on streets of a
I think the decision of the Commission was correct, and that the award should be confirmed.
All concurred, except Howard, J., who dissented.
Award affirmed.
Since amd. by Laws of 1916, chap. 622.— [Rep.