Claim of Wilson v. C. Dorflinger & Sons, 155 N.Y.S. 857

Claim of Wilson v. C. Dorflinger & Sons

155 N.Y.S. 857 | N.Y. App. Div. | 1915

Kellogg, J.:

Unquestionably the deceased met his death while in the employment. A freight elevator was used sometimes by the employees in going from floor to floor, especially when carrying merchandise or freight, and the deceased frequently used it. The Commission has found that he accidentally fell down the shaft and was killed. He was found at the bottom of the shaft. It also finds that he was employed as a porter and shipping clerk, and that one of his incidental duties was to operate the elevator when he had occasion to use it. It also finds that the employers were engaged in the business of selling glassware.

The employers’ first report describes their business as a glass selling agency. The employers’ affidavit, attached to the proof of loss, in answer to the question “What is the kind and character of the business conducted ?” answers “Mfr’s glassware.” But the finding of the Commission that the employers were engaged in the business of selling glassware, in connection with the evidence, establishes conclusively that they were not manufacturers of glass but sellers of glass only, and, therefore, *121the case does not come within group 20 of section 2 of the Workmen’s Compensation Law. The employee was not engaged in a hazardous business within the Workmen’s Compensation Law unless the business falls within group 41 of that section, which embraces “The operation, otherwise than on tracks, on streets, highways, or elsewhere of cars, trucks, wagons or other vehicles, and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules.” There was no elevatorman, but the elevator was used in the business by the different employees from time to time. The serious question is whether it was a “vehicle” within the meaning of group 41. Clearly it was á means of carrying persons and things, and falls fairly within the definition of a vehicle. There seems to be no good reason why cars, trucks and wagons, propelled in the manner mentioned in that group, should be included and an elevator excluded. They are all vehicles for the carrying of persons and things. It cannot be urged that an elevator is excepted by the expression “otherwise than on tracks.” There are guides upon each side of the elevator to keep it plumb and to facilitate its operation, but it cannot be said to be operated upon tracks within the meaning of that group of said section. If such a construction were to be given, the reasoning would force it into group 1 which includes the operation of railways operated by steam, electric or other motive power, street railways and incline railways. The elevator is operated by the power mentioned in group 41, and a liberal construction of the statute brings it within that group. Groups 1 and 41 seem to embrace the operation of every kind of a vehicle by steam, electric or other motive power. The award should, therefore, be affirmed.

Award unanimously affirmed.