Corrina v. De Barbieri

• Citation: 247 N.Y. 357,160 N.E. 397
• Parties: CORRINA v. DE BARBIERI et al.
• Decision Date: 14 February 1928
• Court: New York Court of Appeals

247 N.Y. 357

160 N.E. 397

CORRINA

v.DE BARBIERI et al.

Court of Appeals of New York.

Feb. 14, 1928.

Proceeding under the Workmen's Compensation Law by Rachina Corrina, claimant, on behalf of herself and infant stepchild, on account of the death of her husband, Stephen Corrina, opposed by James De Barbieri, employer, and the New Amsterdam Casualty Company, insurance carrier. The State Industrial Board made an award, and on appeal the Appellate Division reversed the award and dismissed the claim (221 App. Div. 631, 225 N. Y. S. 92), and the State Industrial Board appeals.

Order reversed, and award confirmed.

Appeal from Supreme Court, Appellate Division, Third department.

Albert Ottinger, Atty. Gen. (E. C. Aiken, of counsel), for appellant.

Richard F. Weeks and Frederick Mellor, both of New York City, for respondents.

LEHMAN, J.

The claimant's deceased husband, Stephen Corrina, was imployed as a driver. In the course of his duties he drove a team of horses, hitched to a coal wagon, upon a ferry obat plying between New York City and Jersey City. He fell asleep while lying full length on the seat of the wagon. A deckhand attempted to arouse him when the ferry arrived at Jersey City, but just at that time the team of horses started to walk off the boat, and the driver was jolted from the seat where he was lying. The wagon passed over him, and he sustained injuries which resulted in his death. These facts are established by undisputed evidence, and were found by the Industrial Board.

The board further found that the injuries which resulted in the death of Stephen Corrina were accidental injuries, and arose out of and in the course of his employment. Upon these findings the Industrial Board has ruled that the claim comes within the provisions of the Workmen's Compensation Act (Consol. Laws, c. 67). The Appellate Division has reached a contrary conclusion. While on the ferry the decedent chose to lie down on the seat of the wagon. The position in which he lay shows that he acted voluntarily. His hours of work were long. He fell asleep. While asleep, he was, of course, not watching the horses. The reins dropped from his hands, and he did not awake even when the ferry boat reached the wharf. It is said that, when he went to sleep, he temporarily abandoned his employment, and that injury suffered during such abandonment did not arise in the course of his employment.

The fact that Corrina was not actively at work when he was injured does not contradict the finding of the commission that the injury occurred in the course of his employment. Norris v. New York Cent. R. Co., 246 N. Y. 307, 158 N. E. 879. He could not drive during the passage of the ferry boat across the river; yet his employment required him to remain on the ferry. We may assume that, while on the ferry he may have been under some duty to look out for his horses, and, at...