223 Mass. 139 | Mass. | 1916
The employee Harbroe was night watchman for the Furst-Clark Construction Company, which was engaged in work on the Cape Cod Canal at Buzzards Bay in Barnstable County. This company had buildings, machinery and other property on both the northerly and southerly side of the .canal, and on the easterly and the westerly side of the tracks of the New York, New Haven, and Hartford Railroad Company — which tracks extended in a northerly and southerly direction on a bridge over the canal. At about 3 a.m. on October 9,1914, one Hart, a deputy sheriff at Buzzards Bay, was notified that “yeggmen” had robbed the safe at the Bourne post office. Later Albert L. Trench, the bridge operator employed by the railroad company, and whose station was near the buildings of the construction company, notified the deputy sheriff that the robbers had just crossed the bridge. Hart and his brother, fully armed, started in pursuit. In the vicinity of the company’s office building, they saw, and
1. The insurer contends that the employee was "injured by reason of his serious and wilful misconduct.” St. 1911, c. 751, Part II, § 2. According to the findings of the Industrial Accident Board, he was defending himself from attack by men whom he thought to be desperate criminals. There was some evidence that he did not use his revolver until after they had given the command "hands up” and had fired upon him and his companion, Trench. We cannot say, as matter of law, that the facts show such misconduct as would deprive an employee of compensation under the statute. And assuming that § 2 is applicable where the employee is killed (see Part V, § 2, defining “employee”), the same is true as to his dependents. Nickerson’s Case, 218 Mass. 158. Johnson v. Marshall, Sons & Co. Ltd. [1906] A. C. 409.
2. The finding of the board, that Harbroe’s injury arose in the course of his employment, has some support in the evidence. It occurred during his working hours, and on the path between the office and the machine shop of his employer. The fact that he and Trench had left the office after seeing the supposed “yegg-men” approaching is not conclusive that he had abandoned the care of his employer’s property. He may have been on his way to some other part of the plant, where he would be in less apparent danger of bodily harm. At the time of the shooting he was in a place where he was accustomed to go in the performance of his duties. It is merely conjecture to say that he intended subsequently to leave the premises of his employer. Pigeon’s Case, 216 Mass. 51. See Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560.
3. The doubtful question is whether the injury arose out of the employment. It cannot reasonably be said that the risk of being shot by trespassing lawbreakers is incidental to or has its origin in the nature of a night watchman’s ordinary employment. Undoubtedly there are particular instances where the occupation of a night watchman exposes him to risks substantially beyond the ordinary normal ones and where the employment involves and obliges the employee to face such perils. Where the employee’s
' In the application of this principle to cases of assault upon employees in the course of their employment the authorities are not in harmony. Some of these cases are referred to in McNicol’s Case. In Challis v. London & Southwestern Railway, [1905] 2 K. B. 154, where an engine driver was struck by a stone thrown wilfully by a boy from an overhead bridge; and in Nisbet v. Rayne & Burn, [1910] 2 K. B. 689, where a cashier employed regularly to carry wages by train to a colliery was robbed and murdered in the course of the journey, it was held that the injury arose out of the employment. On the other hand, in Blake v. Head, 106 L. T. 822, 5 B. W. C. C. 303, where a felonious assault was committed by the employer, and in Mitchinson v. Day Brothers, [1913] 1 K. B. 603, where a carter in charge of his employer’s horse was assaulted by a drunken man (both referred to in McNicol’s Case),it was held that the injury did not arise out of the employment. Anderson v. Balfour, [1910] 2 Ir. R. 497, was the case of a gamekeeper who was attacked by poachers, but the questionwaswhether the injury resulted from an “accident,” not whether it arose out of the employment. The same is true of Murray v. Denholm & Co. [1911] Sess. Cas. 1087; S. C. 5 B. W. C. C. 496, where a workman was attacked by strikers. It was also held that the injury arose out of the employment in Kelly v. Trim Joint District School, 47 Ir. L. T. 151, affirmed by House of Lords [1914] A. C. 667, where a schoolmaster was assaulted by some of the boys whose enmity he had incurred owing to his efforts to maintain discipline; and in Weekes v. William Stead, Ltd. 83 L. J. K. B. 1542, where the yard foreman of a firm of furniture movers was fatally assaulted by one of the odd job men who was employed at times by the firm. See also MacFarlane v. Shaw, (Glasgow) Ltd. [1915] W. C. & Ins. Rep. 32. Among the cases contra, see Collins v. Collins, [1907] 2 Ir. R. 104. Shaw v. Wigan Coal & Iron Co. 3 B. W. C. C. 81. Clayton v. Hardwick Colliery Co. Ltd. [1914] W. C. & Ins. Rep. 343.
So ordered.