216 A.D. 574 | N.Y. App. Div. | 1926
The employer, in the course of the business of printing muslins, uses certain cloths known as “ grays.” The muslins to be printed are placed on tables covered with the grays. The grays are designed to take up the surplus color which passes through the muslins in the course of the printing operation. It is necessary to wash the grays frequently. For this purpose a large tank or vat is provided which is filled with hot water. There is a reel at the top, through which the grays pass. Sometimes the cloths, which are fifteen to twenty yards in length, get “ stuck ” and have to be pulled and straightened out. The height of the vat is variously given as four feet or five feet. The claimant’s son Henry, a boy of sixteen, was employed, among other things, to wash the grays. His height has been given as four feet four inches or four feet five inches. Standing at the side of the tank, therefore, his head overtopped the tank not more than five inches. Upon the occasion in question, while Henry was engaged in washing grays, the grays got “ stuck,” and he mounted the rim of the tank in order to straighten them out. He slipped and fell into the hot water and was so severely scalded that he died. It is claimed that, as Henry had been forbidden to climb upon the tank, he was not in the course of his employment when the accident occurred.
The disobedience of an order may do no more than to establish a fault on the part of an injured employee. In that case the employee would not lose his right to compensation. The order, however, may go further. It may so restrict the activities of the employee that its violation would place him outside the sphere of his employment, in which case compensation would not be payable. Thus a machine operator whose employment requires him to oil the machine is not outside the sphere of his employment if, against orders, he oils it when the machine is in' motion. (Macechko v. Bowen Mfg. Co., 179 App. Div. 573; Fox v. Truslow & Fulle, Inc.,
In the case at bar the employee, at the time of the accident, was doing the work which he was employed to do. He was Washing grays in the very tank provided by his employer, and was doing it Within working hours. He disobeyed orders in that he attempted to do the washing, not in the wrong vat or in the wrong room or at the wrong time, but while sitting on the rim of the tank instead of standing by its side. -On account of his low stature, compared to the height of the tank, it was reasonably necessary for him to mount the tank, in order to do the work. We think his disobedience related to the manner of doing the work of his employer at the required place and time, and that it did not place the employee outside the sphere of his employment. The case is very like the English case of Blair & Co., Ltd., v. Chilton (8 B. W. C. C. 324). In that case a workman was employed to turn a wheel in a rolling machine and obliged to stand upon a high platform while so doing.
The award should be affirmed, with costs to the State Industrial Board.
Award unanimously affirmed, with costs to the State Industrial Board.