256 Mass. 290 | Mass. | 1926
This is an appeal by the insurer from a decree of the Superior Court affirming a finding of the Industrial Accident Board (G. L. c. 152), to the effect that the employee’s injury arose out of and in the course of her employment.
The facts which would have warranted the Industrial Accident Board in its conclusion of fact are, in substance, as
On the day of the accident, which would have been a “day off” if the accident had not occurred and nothing intervened, she worked until nine o’clock and then went to her room which was reserved for employees on the third floor of the Hastings House. She tried to go to the bathroom when she came off duty, there was some one in the bathroom taking a bath, then some one else went in; meantime she went to sleep, awoke at about one o’clock and got up to go to the bathroom. The entryway from her room to the bathroom was not lighted, there was no light in the bathroom, there were no doors opening and throwing light into the corridor. In the bathroom the window shade was drawn. The only other window was in the stair casing, with the shade up. Looking for the bathroom she lost her way and went along to the window at the stair casing thinking
On the above excerpted facts the board could find that the employment of the injured employee in a large sense was continuous: she was required to sleep on the premises so as to be at all times subject to call as well as to insure her presence at the hospital when the day began at seven o’clock. The board could therefore properly find that the accident happened during the course of her employment, unless her employment at the time of her injury was suspended by reason of the fact that that day was an assigned “day off.” There was on the facts no break in the continuity of her service: to be free, to have the day to herself, it was necessary that she should be present at breakfast preceding the accident, and there and then ascertain if she was to have freedom for the day. The accident happened upon the premises and the possibility that a person might in the darkness of the corridor, and in the circumstances described make a mistake in choosing the doorway of the stairway for the entrance to the bathroom is a hazard and natural risk attending the use of the corridor in the conditions that obtained that day.
Assuming the accident to have happened in the manner described, the use of the corridor to reach the bathroom to answer a call of nature was a use which was to be expected as a necessary incident of the employment, and the accident was one which arose out of the employment and in the course of the employment.
The finding that the accident arose out of and during the ' course of the employment is not inconsistent with Rourke’s Case, 237 Mass. 360, Bell’s Case, 238 Mass. 46, and Babineau’s Case, 254 Mass. 214, because, on the facts in each of those cases the employee was not at the time of the accident in the active service, although in the general employment
Upon the record we find nothing to warrant a reversal of the decree because of error in the determination of the average weekly wages.
Decree affirmed.