Plaintiff’s intestate was killed on April 29, 1917, while in the defendant’s yards at Manchester, Ontario county, N. Y. He was employed by the defendant as a sectionman, and was engaged during the forenoon of the day in question at work on the tracks. The defendant concedes that it was engaged in interstate commerce, and if this man during the period of his employment was working shifting ties and repairing the tracks over which interstate commerce passed, he would be an employee of the defendant engaged in interstate commerce and
The decedent, under the direction of his foreman, ceased work at about ten minutes to twelve, but was expected to return and go to work at one o’clock. After putting his tools away he started for his home, a distance of more than a mile to the east, outside the yards. It was while he was traveling toward his home over what plaintiff claims was the usual route, on the defendant’s premises, following what was known as the “ return track,” and at a point more than 3,000 feet from his work, that the decedent was struck by a locomotive backing along the return track. The accident occurred at a place where defendant was building a trestle for filling the cars with coal, and where there was some false work for putting in concrete which extended to within about thirty-eight to forty inches of the track, the decedent being caught between the tender and the false work, receiving injuries from which he soon thereafter died. The engine gave no signal or warning, and the decedent received none from any source. It was a cloudy day and there was some smoke blowing about, and the wind was blowing.
The only question properly presented here is: Was the decedent still in the employ of the company and engaged in interstate commerce while going home to dinner by an ordinary route on the defendant’s property? The others sought to be presented are purely questions of fact, where now all inferences reasonably to be drawn as well as the facts proved, are to be viewed in a light most favorable to the plaintiff.
It has been held that an employee in coming to or going from his work in which he was immediately to engage or which he had just left, particularly if upon the employer’s premises, is still engaged in and discharging a duty of his employment. (North Carolina R. R. Co. v. Zachary, 232 U. S. 248; Erie R. R. Co. v. Winfield, 244 id. 170, 173; Knowles v. N. Y., N. H. & H. R. R. Co., 223 N. Y. 513, 516; Lamphere v. Oregon R. & Nav. Co., 196 Fed. Rep. 336; Di Paolo v. Crimmins Contracting Co., 219 N. Y. 580.) While the employee is being carried as a part of his daily service to and from his place of work (San Pedro, L. A. & S. L. R. Co. v. Davide, 210 Fed.
In the case last cited the question was raised that the claimant was not in the employ of the master while she was going to lunch. The court says: “The * * * contention * * * cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely temporary purpose and was revived only upon her return to the work-room. It was an incident of her employment to go out for this purpose. (Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 102.) The decisions upon similar questions under the English act are to the same effect [citing cases].”
The Sundine case, just quoted, seems to be the strongest case on the doctiine that the servant does not lose his character as an employee simply by going to lunch. Upon principle and upon the authority of decisions in this State, the contrary would seem to be the proper rule. The master has ceased to control or direct his work or obtain the benefit of his time or labor. During the noon hour he is free to go where he pleases, and he may or may not return to work at one o’clock.
In Matter of McInerney v. B. & S. R. R. Cory. (225 N. Y. 130) a car inspector on the Buffalo and Susquehanna railroad was accustomed to go for his dinner to his home, which was not on the defendant’s premises. On week days he went by the highway, and on Sundays he walked on the defendant’s
The court cites with approval Hills v. Blair (182 Mich. 20).
Hills v. Blair is a case arising over a State compensation statute, and the court held that when the crew stopped work about noon to eat their dinner and the decedent, who had not brought his dinner with him as was customary, received permission from the foreman to go to his house for it, his house being about half a mile away, and went by a route along the track on the employer’s premises and was overtaken by a train and killed, the evidence was not sufficient to support the conclusion of law that the injury arose out of or in the course of the employment. This case cites Boyd on Workmen's Compensation (§§ 481, 486) and Ruegg on Employers’ Liability and Workmen’s Compensation (p. 377) as authority for the proposition.
In the opinion of Henry T. Kellogg, J., in Sztorc v. Stansbury, Inc. (supra) in holding that a man without food might
We conclude, therefore, that the decedent was not in the employment of the defendant wMle going for Ms lunch at such a distance from the regular place of his employment.
The judgment must, therefore, be affirmed.
All concur, except Kruse, P. J., who dissents upon the authority of Erie R. R. Co. v. Winfield (244 U. S. 170).
Judgment and order affirmed, with costs.