Lead Opinion

Van Kirk, J.:

The question presented is whether or not the accidental injury arose out of and in the course of claimant’s employment; that is, whether or not the claimant stepped out of his employment when he left his train to go to the Albany station to have his time card checked by a route other than that usually followed.

Rule 315, forbidding messengers to leave their cars or safes for any cause unless an employee is assigned by the agent to relieve them, is held by the Industrial Board not to apply to this claimant at the time he alighted from the car. We think this was a correct construction of the rule. It applies to cars having safes, money and valuables. Claimant did not have charge of any car carrying this kind of express. Four messengers could not at one time remain physically in twelve or fifteen cars. It seems very plain that this rule could not have required messengers, having charge of other than “ value ” cars, to remain in their cars. If such were the intention an impossibility was required. The wording of the rule and its heading favor this construction. The Industrial Board has also found that, by leaving the train, the claimant did not change off or leave his regular run without permission. That rule apparently applies to going from one run to another. Messengers must take the regular runs to which they are assigned and are not at liberty to choose for themselves another run. In this sense this rule does not apply to claimant or his acts in this case. Also he had the permission of his employer, evidenced by a practice followed without rebuke.

If we are correct in our understanding of the duties of a messenger and of the construction of these rules, the claimant, after he left Utica, had performed all the duties he was called upon to perform for the company, except to check out at the Albany station. Had he gone on to the Rensselaer yards in the mean time he would *237have performed no service for the company and no act in its interest. He had nothing to do with the express or the express cars in the Rensselaer yards, or with taking them to the Albany station, and no duties to perform in the Albany station in respect to an express car or its contents. Had he gone to the Rensselaer yards and, when getting off there before the train stopped, had fallen and been injured, his right to compensation would hardly be questioned. These circumstances corroborate the testimony in the case that frequently messengers did leave the train at the Livingston avenue bridge on the Sunday run with the consent of the express agent in charge of the train, who was the authorized representative of the employer, having control of the messengers.

The Industrial Board has found that the claimant alighted from the train for the purpose and with the intent of going to the office of his employer in the Albany station to report, and procure the signature of his employer’s agent to his time slip, which act was required by the employer before he returned to Buffalo; that this was an incident of his employment. We think there is evidence to sustain this finding. Claimant was still within the time of his employment and was going to perform his last duty on this run. He did not go, it is true, by the usual route, but, in so doing, he did not in our view step out of his employment. He violated no rule which applied to him; he followed a course which often had been followed by messengers arriving late on this train and the use of which his superior had tacitly at least approved. In Hanifee v. U. S. Aluminum Co. (206 App. Div. 785) the claimant had parked his car in the yard of his employer. There was a rule that employees, when leaving the premises, should pass through the checking out house by going in the back door and out the front door. The claimant went in the back door and also went out the back door; this being more convenient to reach his automobile. While crossing a railroad track in the yards of the company, he was killed by a locomotive. It appeared that some of the employees, regardless of the rule, had been accustomed to go out through this rear door. An award was made and this court affirmed it without opinion. Claimant’s injury in the instant case arose from a risk connected with his employment. He could not leave for his home until he was checked out. He had to get off the train. His injuries were received while doing a duty he was required to perform and as a natural incident of his employment.

The award should be affirmed, with costs to the State Industrial Board.

All concur, except H. T. Kellogg, J., dissenting, with an opinion in which McCann, J., concurs.

Dissenting Opinion

H. T. Kellogg, J. (dissenting):

A master owes the duty, of providing a servant with a means of egress from his place of work which is reasonably convenient and safe. When a servant, with such a means provided, makes his exit by an unsafe means of his own choosing, not provided for or sanctioned by his master, no injury which follows proceeds from a risk of his employment. The claimant, an express messenger, disembarked from an express car of a train upon which he was employed, when the train was in rapid motion. He fell to the ground and rolled under a wheel of the train with the result that both his legs were severed from his body. The place of his disembarkation was not the place designated by his master for the termination of his journey. Had he remained upon the car until it came to its regular stopping place he would not have been carried beyond his destination as fixed by his employment. It seems to me, therefore, that the claimant’s employment did not create the danger out of which disaster came to him and that his accidental injury did not arise out of his employment. This is not a case of a negligent performance of a servant’s duty. It is rather a case of terminating an employment by a means and method not furnished by the employer.

McCann, J., concurs.

Award affirmed, with costs in favor of the State Industrial Board.