McInerney v. Buffalo & S.R. Corp.

• Decision Date: 07 January 1919
• Citation: 225 N.Y. 130,121 N.E. 806
• Parties: McINERNEY v. BUFFALO & S. R. CORPORATION.
• Court: New York Court of Appeals Court of Appeals

225 N.Y. 130

121 N.E. 806

McINERNEY

v.BUFFALO & S. R. CORPORATION.

Court of Appeals of New York.

Jan. 7, 1919.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings for compensation by Ellen McInerney, widow of Michael McInerney, deceased, against the Buffalo & Susquehanna Railroad Corporation, employer and self-insurer. From an order of the Appellate Division (170 N. Y. Supp. 1096) unanimously affirming a determination of the State Industrial Commission awarding compensation, the Railroad Corporation appeals. Reversed, and claim dismissed.

Thomas R. Wheeler, of Buffalo, for appellant.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

HISCOCK, C. J.

What we regard as the determinative facts which have been found in this case, aside from formal ones, are to the effect that the deceased workman was in the employ of defendant as a car inspector in one of its yards; that he was accustomed to go for his dinner to his home, which was not on the defendant's premises, on week days taking the highway and on Sundays walking on the railroad right of way in order to avoid exposing himself in his working clothes to the view of people on the highway; that he took this route ‘without objection’ on the part of his employer, and in so doing ‘violated no enforced rule’; that on Sundays he received pay for eleven hours, which included the one which he was permitted to take for dinner; that on the day in question, which was Sunday, as he was thus going to dinner he received injuries causing death by falling from a trestle which was ‘within the limits of the railroad yards in which yard he performed certain of his duties.’

The Industrial Commission further found as a conclusion that the accident to deceased ‘arose out of and in the course of his employment’; but, since we have findings of the specific circumstances which gave rise to the accident, these are to control, rather than the general conclusion drawn from them by the commission.

Tested by the general character of the undertaking in which the deceased was engaged at the time of the accident, the latter did not arise in the course of or spring out of his employment. Such a trip of an employe as he was taking is not under ordinary circumstances part of the employment. It is true that it has been held many times that, where an employer requests or customarily permits his employes to eat their meals upon his premises or in some place provided for them, the temporary interruption to their work thus caused will not be regarded as terminating their character as employes or as excluding them from the protection of such a law as our Compensation Act (Consol. Laws, c. 67). Highley v. Lancashire, etc., Ry. Co., 9 B. W. C. C. 496, 501; Blovelt v. Sawyer, 6 W. C. C. 16; Morris v. Lambeth Borough Council, 8 W. C. C. 1. This view is in accordance with the rule which prevailed in negligence cases. Heldmaire v. Cobbs. 195 Ill. 172, 62 N. E. 853;Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765;Thomas v. Wis. Cent. Ry. Co., 108 Minn. 485, 122 N. W. 456,23 L. R. A. (N. S.) 954. But no case has been cited or found where an employe going for such a purpose to his home or other place selected by him a substantial distance away from the ‘ambit’ of his employment and from the employer's premises has been regarded as so engaged in the latter's business that an accident then happening to him would be held to be one arising out of and in the course of his employment. On the contrary, it has been uniformly held that it did not so arise. Boyd on Workmen's Compens, § 481; Ruegg on Employers' Liability & Workmen's Compens. 377; Brice v. Lloyd, 2 B. W. C. C. 26; Hoskins v. Lancaster, 3 W. C. C. 476, 478, 479; Hills v. Blair, 182 Mich. 20, 148 N. W. 243. Such an act of the employe lies outside of his employment within the fair application of the principles which were laid down in Matter of De Voe v. N. Y. S. Rys., 218 N. Y. 318, 113 N. E. 256, L. R. A. 1917A, 250, and does not come within the rule applied in Matter of Littler v. Fuller Co., 223 N. Y. 369, 119 N. E. 554, where the transportation in the course of which the injury arose was by the contract of hiring expressly ‘brought within the scope of the employment.’ This view is also in accordancewith the decisions in negligence cases. Wilson v. C. & O. Ry. Co., 130 Ky. 182, 113 S. W. 101;Moronen v. McDonnell, 177 Mich. 691, 143 N. W. 8.

But while not seeming to dispute this general proposition the Attorney General invokes another rule for the purpose of sustaining the present award. This rule is the one that employment for the purposes of a workmen's compensation act, such as ours, does not commence or end at the instant an employe puts his hand to or takes it from his actual work, but includes a reasonable time and space through which he is approaching or leaving his work, and it is argued that under this principle decedent's relation of employe as he departed to his dinner continued down to the point of his accident, and thus gave to the latter the necessary character to make it a basis for compensation. Guastelo v. Mich. Cent. Ry. Co., 194 Mich. 382, 160 N. W. 484, L. R. A. 1917D, 69; Hoskins v. Lancaster, supra; Gane v. Norton Hill Colliery Co., 2 W. C. C. 42, 47.

We do not think that the findings sustain this argument. As already stated, they simply show that at the time the deceased fell he was still ‘within the limits of the railroad yards in which yard he performed certain of his duties,’ there being nothing to indicate how far he had proceeded from where ...