182 A.D. 139 | N.Y. App. Div. | 1918
Lead Opinion
This is a negligence action in which damages resulting from the death of the husband of the plaintiff are sought to be recovered. Deceased was killed by the falling of a wire which carried a current of electricity of high voltage. The wire was maintained by the defendant, and it is not seriously contended that in reference to its maintenance there was freedom from negligence. The chief contention is that the deceased at the time of the accident was the employee of the defendant, and that recovery must be sought under the Workmen’s Compensation Law.
The deceased was employed by the defendant as a janitor
The business of the employer and the occupation of the deceased were hazardous. The deceased, however, was not engaged in his hazardous occupation “ upon the premises or at the plant ” of his employer within the meaning of section 3, subdivision 4, of the Workmen’s Compensation Law. It has been held that workmen on their way to and from the plant, not actually working, but about to work, or having just worked, if still “ upon the premises ” are protected. Evidently the premises meant are not any lands which the employer owns, but rather the immediate premises or grounds upon which the plant is located. Where, as in this case, a workman lives in a house rented of the employer from which, to get to the plant, he must go out upon a public street, he is not while within his own dooryard, though on his way to work, “ upon the premises * * * of his employer ” within the meaning of the act.
Was the deceased, though away from the plant and premises of the employer at the moment of the accident, acting “ in the course of his employment? ” He was carrying a basket of linen to the plant, at the request of his wife, who conducted a restaurant for the defendant in the office building of which the deceased was janitor. They left their house together at about ten minutes to eight in the morning. The wife started with the basket from the door, but before they left their premises handed it over to the deceased with a request that he carry it. It is contended that deceased was employed to
In finding a verdict for the plaintiff the jury necessarily determined that deceased was not so employed. That determination was sufficiently supported by the proof. The wife of the deceased had been employed for several months prior to the employment of the deceased. They were not employed together or at the same time. The wife testified, that at the time of hiring of the deceased she was present and not a word was said about Ms assisting her; that he was to act as janitor, to take care of the office, to sweep it, to clean It, to wash windows and to cut the grass in front of the office; that he was to do no work in reference to the laundry or her work therein. She said that he did no such work and never ‘carried her basket of wasMng; that usually he went to work - at ten minutes to eight and she at ten; that tMs was the first occasion when going to work together he carried her basket. 'For the defense one witness testified that he told the deceased, when hiring him, that he was to help Ms wife in any way possible. Another witness testified that he frequently saw deceased carrymg baskets of linen from Ms house to the office, but when pressed admitted that he did not know what the baskets contained. TMs is all the testimony given upon the subject.. For us to decide that the two latter witnesses, rather than the wife, should be credited, is to usurp the functions of the jury. The evidence was ample to support a finding that the husband in carrying the basket was not doing work which he was employed to do and was not acting “ in the course of Ms employment.”
The judgment should be affirmed, with costs.
All concurred, except John M. Kellogg, P. J., dissenting in opimon in wMch Woodward, J., concurred.
Dissenting Opinion
The defendant has a large steel plant at Colome, N. Y., of about seventy-five acres, upon wMch are the mills, -workshops, office buildings, electric appliances, transformer house- and tenements for housing certain of the employees.
The plaintiff and her husband were employed at the office
The plant is operated by electricity. An electric company delivered to the defendant, at its transformer house near the office building, an electric current of 10,800 volts which the defendant there reduced to 550 volts and carried it over its uncovered wires to the various places on the plant where work is to be done. Such wires are not usually covered. The wire causing the death ran from the transformer house to a pole outside of the house of the purchasing agent on the plant, and at this pole the current was reduced to 110 volts and taken into the house for hghting purposes. It does not appear why the reduction did not take place at the transformer house rather than at the pole, but we must assume that in some way it was in the interest of the business to carry the high voltage along the street and make the reduction at the pole. None of the other houses for the employees had any use of the electric current. It is evident that this high-tension wire was, by a severe wind the night before, brought in contact with the branches of a tree and fused, one end falling upon the ground and the other hanging from the tree. By the judgment appealed from the plaintiff has recovered damages for the death of her husband on the ground that it resulted from the defendant’s negligence.
It is clear, under section 11 of the Workmen’s Compensation Law, that the action cannot be maintained if the accident to the intestate was fairly within the purview of that law. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469; Winter v. Doelger Brewing Co.,Inc., 175 App. Div. 796.) That •law is to be interpreted liberally for the protection of the employee and the employer who has complied with its terms. It was a part of the contract. (Matter of Ziegler, 218 N. Y.
The Workmen’s Compensation Law must not be limited to the mere moments when the employee is actually at work; he is within its protection when he is upon the employer’s premises and on his way to or from work unless he has turned aside for other purposes. (Bylow v. St. Regis Paper Co., 179 App. Div. 555; Matter of Leslie v. O’Connor & Richman, Inc., 220 N. Y. 672; Matter of Di Paolo v. Crimmins Contracting Co., 219 id. 580; Bradbury Workmen’s Compensation [3d ed.], 473.)
The facts above stated, standing alone, bring the case fairly within that law, and this action cannot be maintained unless the facts about to be mentioned change the situation.
The plaintiff and her husband lived in one of the houses at the plant. The wire which caused the death, passed over the premises in front of that house and alongside of the road. In passing from the house to the road, in order to get to the office building, it was necessary for the occupants of the house to pass under the wire. It is claimed that the death came to the tenant by the negligence of the landlord rather than to an employee from the hazards of the employment. The trial court took that view of the case, but left it to the jury to determine whether in carrying the basket of laundry hereinafter referred to the decedent was doing an act of ’ courtesy to his wife or a service to the company, holding, in substance, that the case was not within the Workmen’s Compensation Law unless the decedent at the time was performing a service for the company other than that of going to his work. This view is too narrow; it reverses the presumption in favor of the claim being within the law and is too close a refinement upon the relation of the parties and- sacrifices substance to technicality.
The deceased employee met his death upon the premises of the employer, while going to his work, and from a hazard of the employment. If we are in error upon this point, nevertheless the evidence shows that the accident occurred in the course of and arising out of the employment. Before the
At the time of the accident a basket of laundry for the
The defendant, by contract made with the husband and wife, engaged their services at the office building and was to house them. It probably felt that the work in the restaurant and in the other part of the building could be done more ' satisfactorily by a husband and wife than by strangers, and that each would have an interest in seeing that the work was' properly done and give reasonable assistance to that end, and she, in suggesting the employment of her husband, undoubtedly had the same view. The work called for by the contract of’ employment is usually performed by the janitor and his' family. It was necessarily understood that the husband and wife, in the performance of their services to the defendant, ‘would show the courtesies and attentions and render the assistance each to the other which usually are incident to that relation. They were employed as husband and wife and were expected to render the services as such. The wife has the right, with the consent of the husband, to make a separate contract for her services outside of the household and receive her wages therefor, and in such a case it is presumed the contract is in her sole business and for her sole benefit. (Dom. Hel. Law, § 60.) It is evident that this contract was of a somewhat different nature. The husband and wife together made a single contract for their services and housing, and it is not entirely clear whether if the defendant defaulted in paying their wages that the husband could maintain an action for the nineteen dollars per week less the ten dollars per month for housing; or whether the wife could maintain a separate action for nine dollars per week and escape paying for any part of the housing; or whether a joint action could be maintained for the nineteen dollars per week, subject to a reduction of ten dollars per month for the housing. (Holcomb v. Harris, 166 N. Y. 257; Birkbeck v. Ackroyd, 74 id. 356; Porter v. Dunn, 131 id. 314, 317.)
Those questions must be determined when necessary, by
We have seen that some of the food for the restaurant" was prepared at their home, over their stove and with their equipment, which we assume he owned. Evidently the' husband and wife treated the contract as a mutual affair, for the only rent paid was paid by her, assumably from the general fund or from the earnings of both. She assisted him in his work and he assisted her more or less in hers. The fact that the defendant made the contract with both, and that the work was to be performed at the same time and place and under the same circumstances, indicates that each in a way was to act with the other in the performance of the duties required by the contract which they had made and that each was to render assistance to the other in carrying out the contract. The fact that after the husband’s death the wages formerly paid to both were paid to her, and that she continued to reside in the house, employing such assistance as she desired at her own expense, indicates that in a way the work in and about the office building was treated as one job. We must assume that the parties did not contemplate that the work called for by the agreement was to be done by each as a stranger to the other and to the work of the other. The husband and wife, in a way, in the making and execution of the contract, were treated more as one person than as two separate employees who were strangers to each other and were engaged in separate jobs. A single contract provided that all the work mentioned at the office was to be performed
In Matter of Leslie v. O’Connor & Richman, Inc. (220 N. Y. 672) the injured employee was the manager of a livery stable. The third and fourth floors above the stable were used as tenements, the top floor was occupied by him, and he “ while going down stairs from his apartment fell and cut his forehead.” It was held that the injury arose out of and in the course of his employment. In that case we find from the record that the employee at first received his wages and paid for the apartments, but later he was not charged for the apartment; in other words, his salary was increased by the amount he had been paying in rent.
In this case, while the employees paid for the use of the .house, the fact remains that none but employees could be housed at the plant. They were occupying it so that they would be at all times near the office building to attend to their duties.
We have seen that the authorities distinctly hold that if an employee is injured in a hazardous employment upon the premises of the employer, while goingTto or from his employment, he is within the law. He must equally be within the law if while going to the plant he is injured solely-by a hazard arising from and connected with its operation.
If we assume that an employee en route to the plant to begin work is injured by an explosion at the plant, resulting from a hazard of the business, just before he arrives upon the property of the employer, it would seem that his injury-would be compensable. Ordinarily it is quite immaterial' whether the injury is at the plant or upon the property of the employer. The question is, did the injury arise out of and in the course of the employment. If the employee is away from: the plant while performing a duty relating to his hazardous employment, he is within the law. Where it is held that an employee is within the act while going to his work and receiving an injury while on the premises of the employer, where the injury does not arise from the hazard of the business, his presence upon the premises is necessary to justify the conclusion that the injury arose out of and in the course of the employment. But if the employee is injured while going to his work, and from a hazard of the employment itself, it, is immaterial upon whose premises the accident happens, for he is within both the letter and the spirit of the law.
But if we are to give the matter a more technical consideration, we may well say, when we are speaking with reference to the electric wire and the current carried by it, that the defendant, in the operation of its plant, was in possession of
This law gives compensation without regard to fault, and in determining whether a case is fairly compensable we are to lay aside the question of fault and consider that the rule of the case will apply to other cases where there can be no remedy
The act wisely provides that the question of fault does not enter into the merits of the claim. For that reason we have not considered, and it is unnecessary to consider, whether or not actionable negligence has been shown. That is beside the question. The only question is, do the facts, assisted by the presumption that the claim is within the Workmen’s Compensation Law, entitle the wife to compensation thereunder. In my judgment she was entitled to compensation and for that reason cannot maintain this action.
The judgment and order should, therefore, be reversed and the complaint dismissed, with costs.
Woodward, J., concurred.
Judgment and order affirmed, with costs.