148 N.E. 523 | NY | 1925
This appeal in effect presents the question whether our Workmen's Compensation Act is to be interpreted as furnishing a species of insurance *284 against all injuries received in the course of employment or whether it is to be interpreted as meaning that there must be a traceable, causal connection between the employment and the risk which has caused the injuries other than mere location of the employee.
While the claimant was at work on a building being erected by his employer a shell which had been preserved on adjoining premises as a souvenir of the war exploded and flying fragments not only injured him but killed other people and the decisive question is whether this was an accidental injury "arising out of * * * employment." It seems to the majority of the court that it was not. They believe that the provision of the statute that the injuries must arise out of the employment means that the employment in a reasonable sense must lead to the injuries and requires that there shall be some perceptible, causal connection between the employment and the accident causing the injuries. There was not in our judgment in any true sense any such connection.
Nobody argues that this accident could have been foreseen or anticipated; nobody claims that the work being performed produced the explosion and accident or that it subjected the workman to a risk known beforehand or, as seen after the event, either peculiarly or generally incidental to the employment. It was an accident absolutely detached from and foreign to his employment. The fact that the explosion happened upon the adjoining premises is of no consequence in the theory urged for affirming the award, for, if that theory is correct, the explosion might just as well have happened half a mile away. The only supposed relation between the employment and the accident and the sole basis for upholding an award, as we understand it, is that if the claimant had not been working on this particular house he would not have been hit by a fragment of the shell. The theory for upholding an award, therefore, becomes the naked one that if an accident happens causing injury to a *285 workman because by reason of his employment he was in the place where he was, the necessary relationship between accident and employment is established and the accident is to be regarded as one arising out of the employment. We have thus far found ourselves unable to give that interpretation to our statute. No matter how finely we may have shaded the meaning of words and liberally interpreted the statute in order to uphold awards, this court thus far has definitely and consistently refused to adopt the interpretation of the statute now being urged, and a few cases will be referred to for the purpose of showing not only by what was said in the opinions but by the decisions themselves that we have insisted that there must be some connection between accident and employment other than a mere physical location of the employee which placed him in the pathway of a cause producing injuries, no matter where or how that cause originated.
In the earliest cases the court, accustomed and still influenced perhaps by the principles governing responsibility for negligence, gave importance to the obligation of reasonable anticipation of the accident. (Matter of Waters v. TaylorCo.,
Matter of Heitz v. Ruppert (
In Matter of Kowalek v. N.Y. Consol. Ry. Co. (
In Matter of DeSalvo v. Jenkins (
In Matter of Leonbruno v. Champlain Silk Mills (
In Matter of Heidemann v. Am. Dist. Tel. Co. (
In Matter of Madura v. City of N.Y. (
The principle underlying decisions upholding awards for injuries caused by what have been ordinarily called "street risks" is not any different than that involved in the cases which have been referred to. We have simply held that where an employee is called by his employment to go upon the street he is subjected to special risks as the result of such employment and is entitled to compensation for injuries resulting from such risk even though the particular injury may be unusual. We have recognized that these perils of the street may be "strange, unanticipated and infrequent" but that if the employee in fulfilling his employment is specially subjected to such risks, whatever they may be, we will uphold an award. (Matter of Katz v. Kadans Co.,
An illustration of the application of this principle is found in the case of Matter of Roberts v. Newcomb Co., (
In each of these cases where an award was upheld it could be fairly said, as it was said by the court, that the employment naturally subjected the employee to the risk by which he was injured and the decisions, in my opinion, furnish a volume of controlling authority for the proposition that in order to uphold an award the risk which causes the injury must, within rational limits, be incidental to the employment and more than a risk utterly disconnected from and unrelated to the employment and which only causes injury because the employee happens to be in a certain position.
I now pass to the consideration of certain cases which are thought to uphold the present award.
The first of these is that of Thom v. Sinclair (10 B.W.C.C. 220). In that case it was decided by the House of Lords that an award should be allowed as for an injury received in the course of employment where an employee had been placed at work near a wall which was being erected and which fell and injured her while so employed. Very possibly an award under such circumstances might be sustained within the cases which have been referred to. It is quite within the range of experience that where walls are being constructed bricks fall, scaffolds give way and even the walls themselves collapse and, therefore, it might be said that an employee placed at work next to such a wall was being subjected as an incident of his employment to a very appreciable risk. But in so far as it was said in the course of the opinions delivered in this *290 case that the Compensation Act made an employer an insurer and that it was not necessary to look beyond the accident itself for the purpose of discovering whether it was at all incidental to the employment, the decision is opposed to our law.
We think that the effect of this decision is more or less curtailed by the later decision of the House of Lords inAllcock v. Rogers (11 B.W.C.C. 149) where it was held that an employee injured in cleaning a plate on an outside door of a public house and injured by a bomb dropped by an enemy aircraft was not entitled to an award. It was held that there was no evidence of any special danger attaching to the spot where the man was told to work and that it was impossible to say that the danger of being struck by a bomb could properly be called a street risk and, therefore, the accident did not arise out of the employment. Certainly this decision is in conflict with the theory now being advanced that all that need be established as the basis for an award is that the employment place the employee in a particular spot where he was injured. It seems to me to hold that in addition the risk which caused the injury must be so incidental to the employment that it could be said to be a special one.
The Thom decision also seems to be at variance with the decision in Bateman v. Albion Combing Co., decided by the Court of Appeal, England, and reported in 7 Butterworth's Workmen's Compensation Cases, 47. In that case the question was whether a workman engaged in work in a mill yard and struck by something intentionally thrown out of an upper window of the mill could have an award and it was held that he could not. In that case as in the present one the injury was the result of a casual occurrence which had no relation to the employment.
Matter of Bandassi v. Molla (
The remaining case to be considered is that of Matter ofDomres v. Syracuse Safe Co. (240 N.Y. ___). In that case by a closely divided court an award was upheld in favor of an employee who, while sitting on the street steps of his employer's factory during the noon hour for purposes of refreshment, was injured by an automobile which deviated from its course and struck him. We had no trouble in determining that such an employee was in the course of his employment. The question was whether the accident arose out of his employment. In the consideration of this question the court was much limited by the findings unanimously affirmed that the injuries did thus arise out of and in the course of his employment and while some of the judges who voted for an award may have considered that they might look beyond the general finding to the special findings and may have based their views on the theory of a street risk, there was nothing in the decision which was intended to disregard the principle of causal connection and incidental relationship already so fully discussed.
In conclusion, therefore, however strong may be the *292 economic and sociological arguments in favor of a compensation statute which practically insures the employee against everything except his own misconduct, we think that this court is thoroughly and justifiably committed to an interpretation of our present statute which requires as the basis for an award a causal connection, apparent to a reasonable mind upon consideration of all the circumstances, between the conditions under which the work is required to be performed and the resulting injury; injury from an accident which need not have been foreseen or expected but which after the event must appear to have had its origin in a risk incidental to the employment and to have flowed from that source as a rational consequence, and that there must be more than a mere location of the employee in the pathway of an accident entirely disconnected from his employment.
These views lead to a reversal of the order of the Appellate Division and of the award of the State Industrial Board and a dismissal of the claim, with costs in all courts against State Industrial Board.
McLAUGHLIN, CRANE and ANDREWS, JJ., concur; CARDOZO and LEHMAN, JJ., dissent; POUND, J., absent.
Order reversed, etc.