Claim of Sundy v. James J. Draper Roofing Co.

284 A.D. 911 | N.Y. App. Div. | 1954

Appeal from a decision of the Workmen’s Compensation Board awarding death benefits to the widow and children of a deceased employee. Decedent, employed as a roofer, was, at the time of the unwitnessed accident causing his death, among a group of men who had been for some time engaged in repairing the roof of an industrial plant. Upon reporting for work on the day of his death, decedent went on ahead of the other members of the crew and his whereabouts were unknown until he was found several minutes later lying unconscious on the floor of a storeroom. The roofers had not been working on the roof immediately above the storeroom. Footprints corresponding to those of decedent were found at the top of certain bins and also on a ladder leading to the bins which were at a height of fifteen feet above the storeroom floor. The board found that, while the decedent was engaged in the course of his employment, he fell from the bins to the floor sustaining the injuries which caused his death. Appellants contend that there was insufficient evidence to establish that the accident was one arising out of and in the course of employment. Although there was testimony to the effect that the storeroom was a restricted area, access to which was allowed only to certain of the plant’s employees, there was no evidence that notice of such restriction' had been given to the roofers who were in the employ of an independent contractor, appellant herein. Deceased’s father, foreman of the roofing gang, testified that it was not uncommon for various members of his crew to check for leaks in the roof. The presumption under section 21 (subd. 1) of the Workmen’s Compensation Law, when coupled with the reasonable inferences which the board had the right to draw from the evidence, supports the award. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.