180 A.D. 818 | N.Y. App. Div. | 1917
In September, 1916, the claimant suffered the loss of his right hand while engaged in feeding bundles of rye into a combined thresher and cleaner. This machine was operated by an oil engine connected with it by means of a belt, and the threshing was done at a certain price per bushel and the board of the helpers.
The award was based upon the employers being engaged in the business of milling, and likewise in the operation of a vehicle in connection with the business of threshing rye and other grain with a machine mounted on axles and wheels and drawn from farm to farm where the work was done. So far as appears the sole duty of the claimant to his employers - was feeding the grain-bearing bundles into the machine.
The award is challenged by the employers and the insurance carrier upon the ground that the employment of the claimant was neither that of milling, within the meaning of that term as used in group 29, nor that of operating a vehicle under group 41, of the Workmen’s Compensation Law. The machine was drawn to the farm by horses where the accident occurred the day preceding the injury. While being so drawn it was a vehicle. (White v. Loades, 178 App. Div. 236.) We think, however, that it cannot be considered a vehicle after the horses had been detached and it was being operated as a stationary machine. (Matter of Wilson v. Dorflinger & Sons, 218 N. Y. 84; Holts v. Greenhut & Co., 175 App. Div. 878.)
The appellants’ contention, that the claimant while feeding bundles into the machine was a farm laborer and hence not entitled to compensation, cannot be sustained. (White v. Loades, supra.) It is not claimed that the claimant had anything to do with carrying on the farm where the accident occurred.
As to the claimant being employed in milling, the only evidence of that fact is to be found in the employers’ first report of injury in which the question “ business (goods produced, work done or kind of trade or transportation) ” was answered “ mining business.” Apparently, in making" that answer the appellants treated operating the thresher and cleaner as being engaged in the milling business. There is nothing whatever in the evidence indicating that the
All concurred, except Woodward, J., dissenting.
Award reversed and matter remitted to Commission subject to the right to stipulate as per opinion.