184 A.D. 678 | N.Y. App. Div. | 1918
Plaintiff was employed by defendant as a guard on its elevated railway. He had been on duty for several hours, finished his trip at the terminal, and was off duty on what is known as a “ swing ” of about two hours. His time was at his disposal for that period. He was in the company’s uniform and instead of leaving the train and the premises of the defendant he remained upon the same train when it started on its southerly trip. His purpose in taking the trip was to go to his dentist’s on Fifty-ninth street, but it was his intention to stop off the train at One Hundred and Twenty-ninth street where the employees receive their pay and if there were not too many in line, to collect his pay. After the train had left the terminal and before reaching One Hundred and Twenty-
The appellant’s claim is that the plaintiff’s remedy for this accident is provided by the Workmen’s Compensation Law. Its argument is based mainly upon the amendment of the law made by chapter 622 of the Laws of 1916, which went into effect before this accident. It is claimed that this injury comes within the provisions of the 'act by reason of a change in the definition of “ employee.” Under the act of 1914, “ employee ” was defined as follows (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 3, subd 4): Employee ’ means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, dr in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants.” While the act contained this definition, it was held in Matter of De Voe v. N. Y. State Railways (218 N. Y. 318) that the employee was entitled to compensation only if he were engaged in a hazardous employment at the time of the accident. De Voe, it will be recalled, was a motorman of a street railway who had finished his work for the day and was hurrying to catch a street car to go to an adjoining town to have his watch tested, as required by the rules of the company, and was struck by an automobile and killed. Following the decision of that case in the Appellate Division (169 App. Div. 472), the act was amended by chapter 622 of the Laws of 1916. The amendment gave this definition of employee: “ 1 Employee ’ means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying oil or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants.” It will be observed that instead of defining “ employee ” as one engaged in a hazardous employment in the service of an employer it is now one engaged in the enumerated occupations or who “ is in the service of an employer whose principal business is that of
There is, however, more to be said in favor of appellant’s contention. In the first place, the concluding sentence in the opinion in the De Voe case reads: “ He was not injured while on duty nor in his working hours, nor on his way to or from his duty within the precincts of the company.” That does not hold, but it seems to intimate, that one on his way to or from his duty within the precincts of the company would be entitled to compensation, and there are cases in the Appellate Division that so hold. For example, in the case of a man employed in the subway who reported for work but was considered too drunk to work and was sent away and was injured while walking out of the subway. It was held that this injury arose out of and in the course of his employment and compensation was allowed. (Kiernan v. Friestedt Underpinning Co., 171 App. Div. 539.) Furthermore, it seems right that a motorman or guard who has been taken to the end of the line and is compelled to lay off for two hours or so before the next run should be protected by the act in the case of an injury sustained while in the precincts of the company awaiting his next tour of duty. There would, of course, be no question but that a motorman who had thus gone to the end of his line and who was provided a waiting place a few stations removed and who rode on the train to that waiting place and was injured on the way would be said
It is also claimed that there is no proof of negligence, but as the plaintiff was a passenger and the accident grew out of a collision between the train he was on and another train and the circumstances of the accident are fairly shown, the rule of res ipsa loquitur applies. No proof was put in by the defendant to overcome the presumption of negligence.
The judgment and order should be affirmed, with costs.
Clarke, P. J., Dowling, Smith and Page, JJ., concurred.
Judgment and order affirmed, with costs.