Claim of Russo v. Jarvis Stores, Inc.

193 A.D. 587 | N.Y. App. Div. | 1920

H. T. Kellogg, J.:

The deceased was a stableman in the employment of a corporation which conducted a warehousing and trucking business. He was required to care for and feed about twenty horses, to keep their stalls and the stable clean, to unlock the stable in the morning, to lock it up at night, and occasionally to sweep the sidewalk in front of the premises. It was his duty to remain at the stable until the last team came in at night so that it might be fed by him. Before feeding such a team it was required that thirty minutes after its arrival should elapse. On the night in question the last team came in at about six-thirty, so that on this occasion the deceásed may have finished all his work at shortly after seven. Between seven-thirty and eighb-ten the deceased was discovered lying in a gutter of the street about fifty feet from the premises of his employer. His ribs were broken, and he was carried to a hospital where he soon afterwards died. No broom was found upon the átreet to indicate that he had been engaged in sweeping the sidewalk at the time of the accident. As no other of his known duties would have called him to work outside the stable, no fact appears from which it could justly be inferred that the deceased was in the course of his employment when injured. Nor is the claim assisted in this respect by any presumption given by section 21 of the Workmen’s Compensation Law. We might have held otherwise were it not for the recent decision of the Court of Appeals in Matter of Eldridge v. Endicott, Johnson & Co. (228 N. Y. 21). That case is a clear authority to the effect that all the elements of an accidental injury arising out of and in the course of an employment must be shown to exist by common-law proof independently of the statutory presumption before a claim may be allowed. This claim was not supported either directly or inferentially by such proof, and it must, therefore, fail.

The award should be reversed and the claim dismissed.

All concur, except John M. Kellogg, P. J., dissenting.

Award reversed and claim dismissed.