Award to an applicant for work, injured upon the prospective employer's premises before terms of employment had been agreed upon and before he had done any work, was reversed by the Appellate Division with opinion, one justice dissenting: Brassard v. Delaware & Hudson Co., S. D. R., vol. 18, p. 573, Nov. 19, 1918; 186 App. Div. 647, Mar. 5, 1919. The opinion is given above, page 50.

A railroad car cleaner, while walking home from his day's work, left a public highway, entered upon the railroad tracks and procured an old tie for kindling wood. A train ran him down and killed him. The Commission denied compensation to his widow upon ground that his accident was not incidental to his employment: Brewinski v. Pullman Co., S. D. R., vol. 17, p. 644, Bul., vol. 4, p. 24, Oct. 15, 1918.

An elevated railway guard remained on a train at the end of his run and was severely burned in a collision. He brought an action for negligence against his employer. The employer claimed that the Workmen's Compensation Law governed the accident to the exclusion of the action for negligence; the employee claimed that his status at time of the accident was that of passenger, not of employee. The Supreme Court, New York Trial Term, refused to set aside the verdict of a jury for $20,000 in favor of the employee. Its opinion has been given in Bulletin 87, pages 120-122. The Appellate Division, First Department, has affirmed the Trial Term's judgment and order with further opinion, as follows:

PIERSON V. INTERBOROUGH Rapid Transit Co., 184 App. Div. 678, Nov. 8, 1918. SHEARN, J.: 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-ninth street it came into collision with another train on the same track and the plaintiff sustained the injuries for which the damages have been awarded. The accident happened on June 8, 1916.

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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, or 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: "" 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 on 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 carrying on or conducting a hazardous employment." The claim is that this does away with the settled and recognized limitation that the injury must arise out of and in the course of employment. The argument is not sound. The amendment does broaden the definition so as to make it clear that an employee who is injured while employed by one whose principal business is to carry on a hazardous employment is entitled to compensation irrespective of whether what he is doing at the time is hazardous or not. The argument takes no account of subdivision 7 of section 3 of the act, which reads now as it did in 1914, namely: "Injury' and 'personal injury' mean only accidental injuries arising out of and in the course of employment." While, therefore, the definition of an employee has been changed, there has been no change in the law that limits recovery to injuries that come within subdivision 7 of section 3 of the act.

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 to have sustained an injury growing out of and in the course of his employment. In view of the numerous decisions of the Appellate Division tending in this direction (Countryman v. Neuman, 174 App. Div. 900; Rzepczynski v. Manhattan Brass Co., 179 id. 952; McCabe v. Brooklyn Heights R. R. Co., 177 id. 107, and in view of the intimation at the conclusion of the opinion in the De Voe case, it might be persuasively argued that this case was within the act, if it were not for the recent explicit opinion of the Court of Appeals in Matter of Daly v. Bates & Roberts (224 N. Y. 126) in which Judge HOGAN quotes the opinion of the Court of Appeals in Matter of Heitz v. Ruppert (218 N. Y. 148) as laying down the law applicable to these cases. In the Heitz case the accident happened while the act of 1914 was in effect, but the amendment of 1916 was in effect at the time of the accident in the Daly case. However, as above stated, I do not think that the amendment makes any difference. Judge HOGAN says: "The statute does not provide an insurance against every accident happening to the workman while he is engaged in the employment. The words 'arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both 'out of' and 'in the course of' employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work."" In view of this opinion I do not see how it is possible to hold that this accident was within the purview of the act, for this workman was off duty, was on his way to his dentist's and did not have to report back for duty for two hours. The injury was, therefore, not received while he was doing the duty he was employed to perform nor was it a natural incident of the work.

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.

It is claimed that the verdict is excessive, but a consideration of the serious nature of the injuries, the terrible suffering that the man endured by reason of his burns, the long and painful treatment, the fact that he still has open sores on his body, that these keep him awake two or three

1

nights a week and that he will never get over them make the verdict not unreasonable, in spite of the fact that his earning capacity has been but little impaired.

The judgment and order should be affirmed, with costs. CLARKE, P. J., DOWLING, SMITH and PAGE, JJ., concurred. Judgment and order affirmed, with costs.

An employee quit work at eleven-twenty o'clock at night; twenty minutes later fire broke out in his employer's plant; four hours later a falling wall killed him while he was helping to fight the fire; the Commission awarded death benefits to his mother upon the assumption that he had not gotten clear of, or very far from, the premises after quitting work and before engaging in the fire fighting; the Appellate Division held, to the contrary, that the assumption was that he had gotten clear during the twenty minutes' interval, since it took but five minutes for him so to do; it pointed out also that the evidence was silent as to the time of his entry upon the fire fighting; it reversed the award and dismissed the claim with opinion, one justice dissenting: Cole v. Fleischmann Mfg. Co., Death Case, No. 226894, Apr. 28, 1919; 189 App. Div. 306, Nov. 12, 1919. His membership in the village fire department complicated the question. The opinion appears below, page 137.

b. Compensatable Cases

A passenger elevator operator, leaving his elevator to go to lunch, lost his life while trying to use a freight elevator to procure his hat and coat. The Appellate Division and the Court of Appeals (226 N. Y. Rep. 564, Mar. 11, 1919) affirmed an award to his father without opinion. Circumstances of the accident are set forth in a dissenting opinion of Justice Kellogg, as follows:

HOGAN V. EDWARD ENGINEERING Co., 186 App. Div. 921, Nov. 13, 1918. H. T. KELLOGG, J. (dissenting): The business of the employer was the management and maintenance of elevators, boilers, etc., in various buildings. It operated four elevators in a building, not otherwise controlled by it, which had an entrance on Fifth avenue, and another entrance for the handling of freight on Nineteenth street in the city of New York. On the Fifth avenue side there were two passenger elevators, and on the Nineteenth street side two freight elevators. On the day of the accident the employment of the deceased was as an operator of one of these passenger elevators. On the day before he had been placed upon one of the freight elevators for the purpose of instruction as to the various floors, the names of the occupants of the various rooms, and other matters. He was so instructed upon that elevator

for the reason that the passenger elevator which he was designed to run was still in charge of an operator whose place he was to take. On the morning of the accident he was installed as an operator of the passenger elevator, and from then on his employment was confined exclusively to the operation thereof. He left the elevator at a prescribed hour to go to his lunch. His hat and coat were in the basement, which could be reached by one of the freight elevators only. He crossed the building to the shaft of one of these elevators, and found that the elevator was at the bottom of the shaft. He was told to ring a bell and notify the operator, who was on the basement floor, to bring up the elevator, but instead of doing this he lifted the gate guarding the entrance to the shaft, reached in and pulled the cable, whereupon the elevator shot up, struck him in the head, and inflicted such injuries that he died. It is clear to me that the deceased was not acting in the course of his employment. It is true that an employee who is going from or coming to his work, or is waiting for work, or is on his way to a cloakroom to get his clothes, always while in the plant or upon the premises of his employer, may be acting in the course of his employment, so that for an injury inflicted he might have an award. This is not such a case. In the first place, this deceased was not in the plant or upon the premises of his employer at the time of the accident, for the reason that his employer was neither the owner, the occupant or the custodian of the plant or premises. In the second place, the deceased was not merely a passive agent, waiting or traveling as an incident of his employment, but was actively engaged in operating machinery of his employer which he was neither employed to operate nor had the right to operate. He was doing work which he was not hired to do, and through such work met his death. It seems to me that he stepped out of his employment as distinctly as if he had gone to another building, the elevators in which were managed by his employer, and there been killed while operating one of them without authority. I favor a reversal and dismissal of the award.

A leather goods factory required its employees to work on the Fourth of July; when quitting time came they found the factory door locked and the watchman gone away with the key; after some time they got out by sliding down a fire hose from a second story window and dropping ten or twelve feet; their aged foreman broke his leg in so doing; the courts affirmed an award of compensation to him without opinion: Schiff v. Scheuer & Sons, S. D. R., vol. 19, p. 428, Jan. 10, 1919; 188 App. Div. 944, May 9, 1919; N. Y. Rep., Oct. 21, 1919. The main point at issue is set forth below, page 151.

A steamfitter and general repairer returned from lunch to his employer's plant and started for an upper floor to fix a pipe. He fell down the shaft of an elevator that he was intending to use. The Commission awarded compensation to him. The employer contested the claim upon the ground that the employee was not on