In re O'Brien

• Decision Date: 02 November 1917
• Citation: 117 N.E. 619,228 Mass. 380
• Parties: In re O'BRIEN. In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 380

117 N.E. 619

In re O'BRIEN. In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 2, 1917.

Appeal from Superior Court, Worcester County.

Proceeding under the Workmen's Compensation Act (St. 1911, c. 751, as amended St. 1914, c. 708), by John O'Brien to obtain compensation for personal injury, opposed by the Standard Comb Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. Compensation was awarded by the Industrial Accident Board, on review, and from a decree of the superior court affirming the award the insurer appeals. Decree affirmed.

Chas. C. Milton and Frank L. Riley, both of Worcester, for appellant.

J. Ward Healey, of Leominster, for appellee.

PIERCE, J.

It was agreed that the employee received an injury on September 12, 1916, in the course of his employment; that the claim for compensation was filed on January 5, 1917, and that the employer had knowledge of the injury when the accident occurred. On appeal to this court the only question presented is whether or not the injury which the employee received on September 12, 1916, arose out of his employment.

The facts were these: The employee was sixty-four years of age and was practically blind as to his right eye. He had worked for the employer when there was work for him to do for five years, and was always faithful at his work. His vision was ample so far as his working needs were concerned and he could see with his left eye to go down the stairway upon which the injury occurred. The accident happened at about six o'clock in the evening after the whistle had blown and while the employee was going down stairs on his way home. The stairway from which the employee fell is on the outside of the building of the employer and goes up from the ground to the second story. It is covered by a roof which is held up by posts: one at the top of the stairway, one about five feet down, one some feet below that and still another farther down. There is a railing about three feet high on the right side of the stairs as one comes down. These stairs were used by some of the men in the employee's department. There are three ways of going down to the street from the second floor and the men had the privilege of using any one of the stairways. There was evidence that the employee had his hand on the railing part was down the stairs; that momentarily he took his hand off the railing; that other...