229 Mass. 165 | Mass. | 1918
There was evidence that the city of Boston hired a steam roller at $15 a day for work on its highways, the contractor who owned it furnishing “engineer, coal, wood and steam.” The employees of the city at different times helped the engineer, Gilbert Peloquin, roll up the curtains, put coal in the bunkers and fill the tank. Patrick J. O’Toole was employed by the city, in spreading cracked stone on the roads. The engineer testified that the only time this employee helped him around the roller was when he helped to roll up the curtains, though the employee “had ridden with him before on the steam roller and had asked him to teach him [the employee] how to run it.” On two occasions before the accident O’Toole operated the roller a short distance, while being taught. At another time he rode on the roller. On the day of the accident the men stopped work between twelve and one o’clock. It was raining very hard and while the roller was at rest the engineer called O’Toole, saying, “Come here, Pat, I want to speak to you.” They engaged in conversation. The “conversation was just social and had nothing to do with the work,” O’Toole speaking of a transfer to another department. They “spoke a few words.” O’Toole said he was getting wet and stepped on the roller. The engineer started the machine “to blow off some steam.” After going up and down the street, he stopped on top of the hill. The roller started to coast down the hill and when the engineer took hold of the throttle, the “gears came up; the pin which holds the gears had come out . . . the machine crossed over the sidewalk.” O’Toole was caught between the piazza of the house and the wheels of the roller. This was about “ten minutes to one or twenty minutes to one.” He died as a result of these injuries.
These controlling facts show that, while O’Toole was on the roller, he was speaking to the man in charge about his own affairs and his presence there related solely to his own interests. His occupation did not require him to be there. He was there discussing his own prospects and his transfer to another department, or matters “just social and had nothing to do with the work.” He was not called by the engineer to perform any work or to aid in any way in carrying on the business of the employer. The testimony, that Peloquin said after the injury that O’Toole was his helper, does not contradict these essential facts; indeed, there
There are cases which hold that an employee is protected by the workmen’s compensation act, although not at the time actually engaged in the work for which he was hired. If the employee is injured in going to or returning from his work upon the master’s premises, or on premises available for the purpose, or if during intervals of leisure which occur in the course of his employment he is injured, he may still be within the scope of his employment and entitled to the benefits of the act. Sundine’s Case, 218 Mass. 1. Blovelt v. Sawyer, 6 W. C. C. 16. But the principle of these cases is not applicable where the servant leaves the sphere of his employment for some purpose of his own entirely disconnected with and not in any way incidental to the employment.
The decree is to be reversed.
Decree to he entered for the employer.
