Madura v. City of New York

• Decision Date: 13 May 1924
• Citation: 144 N.E. 505,238 N.Y. 214
• Parties: MADURA v. CITY OF NEW YORK (Bronx Parkway Commission).
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 214

144 N.E. 505

MADURA

v.CITY OF NEW YORK (Bronx Parkway Commission).

Court of Appeals of New York.

May 13, 1924.

Proceeding under the Workmen's Compensation Act by Mrs. Anna Madura, claimant, for death of George Madura, her husband, opposed by the City of New York (Bronx Parkway Commission), employer. From a judgment of the Appellate Division, Third Department (206 App. Div. 598,201 N. Y. Supp. 639), correcting record, and unanimously affirming an award, the employer appeals, by permission.

Affirmed.Appeal from Supreme Court, Appellate Division, Third Department.

George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, Henry J. Shields and Frank E. Smith, all of New York City, of counsel), for appellant.

Carl Sherman, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

HISCOCK, C. J.

The findings of fact unanimously affirmed are to the effect that while the decedent, Madura, was in the employment of the city of New York, as a laborer upon the Bronx Parkway, a thunderstorm arose; that, being directed by his foreman to remain until after the storm, in order to perform various duties, he sought shelter under a tree, no other provision for shelter having been made by the employer, and that, while standing there with his foreman, he was struck by lightning and killed. Under these circumstances, the State Industrial Board has found that his death was the result of injuries which arose out of his employment, and it is argued by appellant that the danger of being struck by lightning was one common to everybody in that vicinity, and that, therefore, it was not a risk especially attributable to the employment of the decedent, or for which an award could be made, under the Workmen's Compensation Act (Consol. Laws, c. 67).

It is suggested that this question is not arguable on this appeal. The inquiry whether a given accident arose ‘out of’ a given employment necessarily involves a consideration of the facts attending such accident, and the finding of the State Industrial Board that this particular accident arose out of the decedent's employment, being unanimously affirmed ordinarily would withdraw from our consideration the review of any decision of fact.

[2] We think, however, that, this general finding being a general conclusion based on findings of special facts, the question is open to us whether it is sustained by such facts, and we reach the conclusion that it is.

There is no question that decedent was in the course of his employment at the time he was struck. He had received specific instructions to remain at his place of employment in order to perform certain duties when the storm had passed. Under these circumstances, he had the right to seek shelter from the storm, and the effort thus to avoid its consequences did not in any manner break or suspend the relationship of employee. Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177,154 N. Y. Supp. 620; affd., 217 N. Y. 627, 111 N. E. 1092.

The only question then is whether, as the result of his employment, which continued while he sought shelter, he was exposed to any unusual risk. Matter of Katz v. A. Kadans & Co., 232 N. Y. 420, 134 N. E. 330, 23 A. L. R. 401.

[3][4] We think that, as the result of judicial knowledge, which may be taken of scientific facts, the Industrial Board was permitted, without expert evidence, to find as it did by implication, and that we are permitted to say that he was. It is a matter of widespread scientific belief and declaration that a wet tree is a ready conductor of a current of electricity, and that a person standing under such a tree is exposed to a degree of danger which does not confront one in the open spaces of a highway or field. Chiulla de Luca v. Bd. Park Com'rs of City...