Merlino v. Connecticut Quarries Co.

• Decision Date: 23 July 1918
• Citation: 93 Conn. 57,104 A. 396
• Court: Connecticut Supreme Court
• Parties: MERLINO v. CONNECTICUT QUARRIES CO.

104 A. 396

93 Conn. 57

MERLINO v. CONNECTICUT QUARRIES CO.

Supreme Court of Errors of Connecticut.

July 23, 1918

Appeal from Superior Court, New Haven County; William S. Case Judge.

Proceeding under the Workmen's Compensation Act by Ernesto Merlino for compensation for the death of her husband opposed by the Connecticut Quarries Company, employer. Compensation was awarded. On appeal to the superior court the judgment was vacated, and the claim dismissed, and claimant appeals. Error, and cause remanded.

This is a proceeding under the Workmen's Compensation Act (Pub Acts 1913, c. 138) by Ernesto Merlino, widow and dependent of Eugunio Merlino, against the Connecticut Quarries Company. Merlino was employed in a quarry conducted by the employer respondent, and quit work at 5:30 p. m. when the quitting whistle blew. He went down a pathway to a commissary situated upon premises controlled by the employer, carrying with him four empty boxes for firewood. At the commissary Merlino talked for a minute or two with another workman declined an invitation to drink a glass of beer, and picked up his child, who had come to meet him. He then proceeded along a road leading to his dwelling. The commissary was conducted by an individual to whom the respondent gave the use of the land for that purpose, in order that his employés might obtain supplies at a point convenient to their work. It was the custom of the employer respondent to fire blasts about 10 minutes after work ended for the day, a warning being given by blowing a whistle five times, when it was expected that employés within the danger zone would seek shelter. On the afternoon in question the warning whistle was blown about 4 minutes after the quitting whistle blew, and the blasts were fired several minutes later. Merlino had then reached, on his way home, a point from 15 to 60 feet from the commissary, where he was killed by a stone thrown by the blast. Nearly 10 minutes elapsed between the quitting whistle and the blast, and Merlino might easily have been out of danger, if he had not stopped at the commissary, and had not incumbered himself with the boxes and child. The neighborhood of the commissary was more or less dangerous while blasting was going on. The commissioner awarded compensation, and the Superior Court, on appeal, vacated the award and dismissed the claim.

Peter Trenchi and J. Frank Sullivan, both of New Haven, for appellant.

Harrison Hewitt and Charles E. Clark, both of New Haven, for appellee.

BEACH J.

The injury arose out of the employment, at a place within the danger zone created by the business of the employer. That being so, the only question remaining is whether it was fairly consistent with the performance of the contract of employment that Merlino should be at or about the place at or about that time. In Mann v. Glastonbury Knitting Co., 90...