198 A.D. 674 | N.Y. App. Div. | 1921
Lead Opinion
The employer maintained a dressmaking plant on one of the upper floors of a building situate at No. 2 West Forty-seventh street in the city of New York. He did not own the building nor was he in possession of any portion of its rooms, hallways or staircases, other than those upon the floor where his plant was located. The claimant was a seamstress who worked in the plant of her employer. While entering the lower hall of the building she stepped , upon a piece of coal, slipped and fell to the floor, and sustained various injuries for which an award has been made.
An employee is defined in subdivision 4 of section 3 of the Workmen’s Compensation Law as follows: “'Employee’ means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” The sentence is badly constructed, owing to the fact, doubtless, that the subdivision as originally enacted was amended by the process of removing entire phrases therefrom and adding others thereto. (Laws of 1916, chap. 622; Laws of 1917, chap. 795.) The subdivision originally read as follows: “ ' Employee ’ means a person who is 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.” (Laws of 1914, chap. 41.) Read in the light of this previous
In Manor v. Pennington (180 App. Div. 130) the employer was in possession of the first and second floors of a garage building where he was performing work of construction. An employee met with his death from an explosion of a boiler in the cellar of the building to which he had gone for the purpose of eating his mid-day meal. It was held that as the cellar was not the premises of the employer the claim made for the death of the employee was not compensable. In Etherton v. Johnstown Knitting Mills Co. (184 App. Div. 820) an employee went to the basement of the plant of her employer to set a bottle of tea on the boiler to heat it for her lunch, and was injured by a fall on the basement staircase. An award for her injuries was sustained. In Donlon v. Kips Bay B. & M. Co. (189 App. Div. 415) an award for the death of an employee, who fell down an elevator shaft while walking about the plant of his employer after having had lunch in a room of the plant set aside for that purpose, was affirmed. The distinction is that in the two last cases the accident occurred on the premises of the employer, while in the Manor case it occurred away from such premises. In the Manor case it was said: “ This accident did not occur upon the premises or at the plant of the employer, but upon the premises or at the plant of the Hannan & Henry Garage Company, where neither the employer nor the employee had any rights, except by the license of the owners; it occurred ‘ away from the plant of his employer ’ but not ‘ in the course of his employment.’ ” In Berg v. Great Lakes Dredge & Dock Co. (173 App. Div. 82) an employee fell
The award is reversed and the claim dismissed.
Cochrane, Kiley and Van Kirk, JJ., concur; John M. Kellogg, P. J., dissents.
Dissenting Opinion
The employer owes to the employee a safe place in which to work and a safe entrance into that place. The entrance may
If an employer locates his shop on the second floor of his building, and access is gained by a stairway outside or in the building, it would seem that the stairway would be a part of the plant or premises of the employer and it would not be material whether the stairway was for the sole use of the employer or for the joint use of various employers. The question of property right in the stairway is immaterial; the use of the stairs is- the important question, and between the employer and employee the stairs are the stairs of the employer who alone furnished them for the use of the employee. The stairs and entrance way were not constructed for public use, but for the use of the persons having business in the building and whoever might have calls of business or pleasure with them. An employer whose plant is located above the first floor of a building necessarily has the use for ingress and egress of the hallways and stairs leading thereto. The right to use them, if not mentioned in the lease, follows as a matter of right, and if the employer deems the stairs or entrance way insecure for his employee, he may locate his plant elsewhere or cause the necessary corrections to be made.
If the employer was running an elevator, or maintained a stairway of his own from the first to the upper floor, the case fairly would fall within Matter of Littler v. Fuller Co. (223 N. Y. 369). There the employer was carrying his employees in an automobile truck from a place near their homes to the
In Matter of McInerney v. B. & S. R. R. Corp. (225 N. Y. 130), where a railroad yard employee traveled more than half a mile upon the right of way and fell through a trestle, it was held that he was not upon the employer’s premises within the meaning of the act, as he was a substantial distance from the “ ambit ” of his employment and going in an unusual way. The court, referring to cases where the employee carries with him the character of an employee while approaching or leaving the premises, says (at p. 135): “ In the cases which have been called to our attention where the claim of an employee has been sustained under the rule which we have discussed, the accident happened in close proximity to the place of work and while the employee was on the premises of the employer and departing from or approaching his work by a way which had been furnished or adopted by the employer as a usual and customary, oné.”
In Driscoll v. Gillen & Sons Lighterage, Inc. (187 App. Div. 908; affd., 226 N. Y. 568) the decedent employee was the captain of a lighter. On December 31, 1917, he started for his boat, intending to spend the day and night there. He was seen on shore about six o’clock in the evening carrying some food, and stated that he was on his way back to the boat. He was not seen thereafter until May second, when his body was found in the water near where the boats were moored. His lighter, the Harry, lay alongside the lighter Greenpoint, in the East river at pier 22 in Brooklyn. It was hooked, fore and aft, to the lighter Greenpoint, and about two feet therefrom, and the Greenpoint was secured to the pier, separated from it a
In Sundine’s Case (218 Mass. 1; 105 N. E. Rep. 433; L. R. A. 1916A, 318) the employee was injured upon the stairs while going to her luncheon. The stairs were not owned or in the control of the employer, but were the only means of access provided for the employees, and it was held the injury arose out of the employment.
In Martin v. Metropolitan Life Ins. Co. (197 App. Div. 382) the defendant owned the building, which occupied an entire block in New York city. It occupied the eleventh and twelfth floors in its business. The remainder of the building was rented to various tenants. The claimant, in its employ on the eleventh floor, was injured while descending in the elevator, during the noon hour, for her personal reasons, after she had obtained her luncheon at the employer’s lunchroom on the twelfth floor, and it was held that she could not maintain an action of negligence as the case fell within the Workmen’s Compensation Law. There the claimant’s employer only used in its business the two floors, and those two floors had the use of the elevators in common with all the tenants of the building. The elevators were the only means which the employer had furnished to enable its employees to pass from the street to their work. The ownership of the building was not the controlling feature, for in the Mclnerney case the railroad company owned the right of way where the accident occurred, but it was too remote from the premises or plant where the employee worked and not a way provided for its use. The fact that the insurance company owned the building did not extend its plant or premises of employment to include the entire building. The plant and premises were the eleventh and twelfth floors. The material fact is that the accident took place upon the only means which the company had furnished its employees to get to and from the place of work.
The words “ upon the premises or at the plant * * * of his employer,” in subdivision 4 of section 3 of the Workmen’s Compensation Law, do not refer to ownership or property
In Latter’s Case (— Mass-; 130 N. E. Rep. 637) the factory of the employer was on the fifth floor, which he held under a lease from the owner of the building. The lease did not in terms refer to the elevator. The only means of access to the factory was by the elevator or a stairway; the elevator was generally used. An employee, in ascending the elevator to begin his day's work, was injured thereon, and was given compensation, the court saying he “ was in a place where he had the right to be as against the landlord and as against the employer, who could have been found to have authorized its use. This right was dependent upon and arose from the employment; and the risk of injury while using the elevator was an incident and hazard of the employment.” In the instant cases the employer required the employees to use the place of the accident as a condition of the employment: We may say, having in mind the quotation from the Littler case, that the place of injury was brought within the scope of the employment because the employee, when she was injured, was on her way to her duty within the precincts of the company and upon the only way which the employer had. made it possible for her to reach her work. I favor an affirmance.
Award reversed and claim dismissed.
See Frey v. Burrows Shoe Co. (199 App. Div. 947), which was decided November 16, 1921, upon authority of Ross v. Howieson (198 App. Div. 674), John M. Kellogg, P. J., dissenting upon this opinion.— [Rep.