205 A.D. 198 | N.Y. App. Div. | 1923
Lead Opinion
On October 20, 1919, the claimant worked for the above-named employer as watchman at his Long Island storage house, No. 781-789 Kent avenue, Brooklyn, N. Y.; his wages were twenty-three dollars per week, seven days of the week; he had worked for this employer three years. On the date aforesaid he went on duty at six p. m. and his quitting time was seven a. m. At about nine-thirty p. m. on October twentieth, aforesaid, two boys came into the office; they were under sixteen years of age; one of them, the oldest, had an air gun in which BB shot was used. They had been there about three minutes and were going out when another young man about nineteen years old came in; claimant was sitting down reading a paper. The young fellow asked the boy, who had the gun, what he had and where he got it, and took it in his hands, and pointed it at them; one of the boys said it might be loaded, at which expression the claimant looked aside of or over his paper and was struck by a shot from the gun in his left eye, destroying the sight of that eye. On proceedings duly had claimant was awarded two-thirds of his weekly wage for 128 weeks. (Workmen’s Compensation Law, § 15, subd. 3, as amd. by Laws of 1917, chap. 705.) On a subsequent hearing the award was rescinded by the State Industrial Board and claim dismissed upon the ground that the injury did not arise out of claimant’s employment. Section 3, subdivision 7, of the Workmen’s Compensation Law (as amd. by Laws of 1917, chap. 705) defines "injury" and “ personal injury ” as “ only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.” A further consideration of the evidence discloses that the young man who fired the shot had some nine months or a year previous to the date of the accident been in the employ of this employer, but at the time of the accident he had no connection with the employer or his business. He was acquainted with the claimant but no friendly relations
The decision of the State Industrial Board should be affirmed.
H. T. Kellogg, Acting P. J., Van Kirk and Hinman, JJ., concur; Hasbrouck, J., dissents.
Dissenting Opinion
I dissent.
Whatever the claimant may have been doing, he heard the Fisehetti boys and McCarthy talking about a gun and gave his attention to the condition existing and while so doing McCarthy discharged the air gun and put out claimant’s eye. An award has been denied the claimant because the injury did not arise out * of the claimant’s employment. That employment was to watch and patrol the premises, to drive away trespassers and intruders. Clearly upon the evidence McCarthy was a trespasser and an intruder. One of the dangers of the employment was from just such persons. If the gun was discharged for the purpose of injuring the watchman because he was a watchman there could be no doubt that the injury arose out of the employment. There is no evidence to show that the injury was not intentional and there is besides the presumption that the claim lies within the provisions of the Workmen’s Compensation Law. (§ 21.)
Being a watchman “ For him, in a measure not common to the public generally, there was exposure to the perils that come from contact with the criminal and lawless.” (Matter of Heidemann v. American District Tel. Co., 230 N. Y. 307.) Being a watchman he was exposed to contact with the trespasser and intruder and the menace which naturally flows therefrom. Claimant was thus brought by the character of his occupation “ within the zone of special danger.” (Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 472.)
When we consider that the great purpose of the Workmen’s Com
As Judge Cardozo said: “ The test of liability is the relation of the service to the injury, of the employment to the risk.” {Leonbruno Case, supra.) Measured by that test we find the claimant in the very act of looking about his master’s premises to see what an intruder was doing with an air gun, a dangerous instrument, and while so doing having his eye shot out. The relation of the employment to the risk seems indubitable.
I favor a reversal of the decision of the Industrial Board and the remission of the case to it.
Decision affirmed, without costs.