264 Mass. 495 | Mass. | 1928
The single member of the Industrial Accident Board who heard this cause found that the employee, in the course of his employment of running an elevator for the assured, stepped upon the elevator after it had been set in motion by another employee, was thrown down and received injuries which resulted in his death. She found that the
The insurer contends that the injury did not arise out of and in the course of the employment, because the employee voluntarily incurred an additional risk neither contemplated by his contract nor incidental to it; because the aecidenj; resulted from violation of a rule of the employer then in force; and because the employee was injured by reason of his serious and wilful misconduct. The validity of these contentions rests upon the determination of questions of fact. This court will not reexamine questions of fact decided by the single member or the reviewing board if there is evidence to sustain the findings, unless a different finding is required as matter of law. Silver’s Case, 260 Mass. 222. Chisholm’s Case, 238 Mass. 412, 419. Dow’s Case, 252 Mass. 191.
There was testimony that although the injured employee had been forbidden by his employer to leave the elevator while in charge of it, he had been some six feet away from it talking to a fellow employee and had failed to attend to three calls from an employee who wished it used, so that the latter had placed a truck upon it and himself .pulled the chain to start it away from the floor where the elevator man had left it before its custodian reached it. There was also testimony that no one but the man in charge was authorized to move the elevator. It was for the member or board to decide what of this testimony was to be believed, but if we assume that it be taken as true it falls short of establishing a violation of orders contributing to the injury, or such wilful misconduct, or assumption of additional risk as precludes recovery. It was the employee’s duty to manage the elevator even if some one else had set it in motion; and a finding is justified that he was acting in the course of his employment in seeking to step upon it, and that his injury arose out of his employment.
Negligence on his part does not bar recovery. Madden’s Case, 222 Mass. 487. Violation of a rule is not necessarily
The risk here was not necessarily additional to the contract of employment, but might be found to be contemplated by and incidental to it.
It follows that there was no error in the decree.
Decree affirmed.
