Kowalek v. New York Consol. R. Co.

• Decision Date: 16 November 1920
• Citation: 229 N.Y. 489,128 N.E. 888
• Parties: KOWALEK et al. v. NEW YORK CONSOL. R. Co.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 489

128 N.E. 888

KOWALEK et al.

v.NEW YORK CONSOL. R. Co.

Court of Appeals of New York.

Nov. 16, 1920.

Proceeding under the Workmen's Compensation Law by Ida Kowalek and another for compensation for the death of Max Gottesfeld, opposed by the New York Consolidated Railroad Company, employer. From an order of the Appellate Division (190 App. Div. 160,179 N. Y. Supp. 637), affirming an award by the State Industrial Commission, the employer appeals by permission.

Reversed, and claim dismissed.

Appeal from Supreme Court, Appellate Division, Third Department.

Harold L. Warner, of New York City, for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent State Industrial Commission.

COLLIN, J.

The State Industrial Commission decided that Max Gottesfeld died from injuries received as an employee of the appellant, New York Consolidated Railroad Company, under conditions making the Workmen's Compensation Law (Consol. Laws, c. 67) applicable. Their award has been unanimously affirmed by the Appellate Division. We are to determine whether or not the facts as found by the commission uphold the award.

His employment was fiagman of the railroad company, which was engaged in the business of local transportation in New York City. His employment included, as overtime work, duty at times as train guard. On the date of the injuries he completed in the evening his day's work as flagman, returned to the passenger station, and there reported to the train dispatcher for overtime work, and was assigned as a guard on a train. He made one run or trip, and again reported to the train dispatcher, and was not given another assignment. He then signed up his time for the day, said good night to the train dispatcher, and went from the office of the train dispatcher upon the passenger platform of the station, with the apparent intention of taking a train for his home. It was the practice of the company to permit employees to ride to and from their work upon the cars or trains of the company without charge. About 10 minutes after he went from the dispatcher's office upon the passenger platform, his dead body was found, about 100 feet from the platform's end, between the third rail and the running rail of the railroad. His death was caused by electrocution, due to contact with the third rail, and fractures which he sustained. The railroad, at the place where the body was found and at this location, was the private right of way of the railroad company, upon which the general public or the passengers of the railroad had not the right to be. Between the time he went upon the platform and the time his body was found a train left the platform in the direction of the decedent's home.

The death of Gottesfeld resulted from an accidental injury. In case the injury arose out of and in the course of the employment, the determination of the Industrial Commission is right. Workmen's Compensation Law, §§ 2, 3, and 10. We are thus brought to the question whether or not, under the facts as found, the injury arose out of and in the course of the employment. The decedent went, at the termination of his actual work for the day, from the office of the train dispatcher upon the passenger platform at the station. It is a general rule that, if an employee is injured on the premises of the employer,in going, with reasonable dispatch and method, to or from actual performance of the specific duties of the employment, by a way provided by the employer, or reasonably used by the employee, compensation must be awarded. The going to and from the actual work and the risk involved in it are reasonably incidental to the employment. The rule, however, is not applicable to the facts in the instant case. The decedent went and was upon the passenger platform with the intention and for the purpose of taking a passenger train from it to his home. The company permitted him to ride to and from his work upon the cars or trains without charge. The contract of employment did not obligate the company to transport him. In enjoying or exercising the permission,he adopted his own will and choice and served his own convenience. The company was indifferent as to the way or means by which he reached the place where the day's work began. It did not contract that he should ride to and from work, or pay him for the time through which he was riding. The transportation was not an incident of the employment.

The employment continues throughout the transportation in case the parties by their contract of hiring positively or inferentially so stipulate. If they do not so stipulate, the employee, when he enters into the process of the transportation, is not under the hiring or control or in the employment of the employer, and is not the employee. Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778;Fumiciello's Case, 219 Mass. 488, 107 N. E. 349;Diaz v. Warren Bros. Co. (Conn.) 111 Atl. 206;Swanson v. Latham, 92 Conn. 87, 101 Atl. 492;Matter of Littler v. Fuller Co., 223 N. Y. 369, 119 N. E. 554; Nolan v. Porter & Sons, 2 Butterworth's W. C. C. 106; Hebert v. Portland Railroad Co., 103 Me. 315, 69 Atl. 266,125 Am. St. Rep. 297,13 Ann. Cas. 886;Harrison v. Central Construction Corporation, 135 Md. 170, 108 Atl. 874. When the decedent went and was upon...