Norris v. New York Cent. R. Co.

• Decision Date: 22 November 1927
• Citation: 158 N.E. 879,246 N.Y. 307
• Parties: NORRIS v. NEW YORK CENT. R. CO.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 307

158 N.E. 879

NORRIS

v.NEW YORK CENT. R. CO.

Court of Appeals of New York.

Nov. 22, 1927.

Proceeding under the Workmen's Compensation Act by Theresa Norris for the death of her husband, James H. Norris, opposed by the New York Central Railroad Company, employer and self-insurer. From an order of the Appellate Division reversing an award of the State Industrial Board and dismissing the claim (220 App. Div. 359, 221 N. Y. S. 569), claimant appeals.

Order of Appellate Division reversed, and award affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

Frederick J. Flynn and Charles R. Mullin, both of New York City, for appellant.

Albert Ottinger, Atty. Gen., for State Industrial Board.

Robert E. Whalen, of Albany, for respondent.

KELLOGG, J.

The workman, James H. Norris, for whose death this claim was filed, was employed to unload cans of milk from railway cars, placed in the yard of his employer, the New York Central Railroad Company, and to deliver the same on board motor trucks of consignees. The yard was situated in New York City between Twelfth avenue on the west and Eleventh avenue on the east, and was bounded on the north by Thirty-Fourth street and on the south by Thirty-Second street. Two private roadways, designated respectively ‘A’ and ‘B,’ crossed the yard from east to west, connecting Eleventh and Twelfth avenues. Roadway A was about 100 feet to the north of roadway B, and was separated therefrom by six lines of tracks, running easterly and westerly. Roadway A swung down to meet roadway B at Eleventh avenue. At about the point of convergence, on the edge of Eleventh avenue, stood a flag shanty. This shanty was warmed by the heat from a stove. A short distance to the south, on the westerly edge of Eleventh avenue, was a yardmaster's office. In this building there was a toilet. On the night of October 1, 1925, the workman Norris was assigned to unload milk cans from a car placed on a railway track just north of roadway A and about 500 feet west of Eleventh avenue. Norris came to work at about 11 o'clock p. m. He first checked up on the number of cans, as was his duty, and reported the count correct to his foreman. He then proceeded to deliver cans on board a consignee's motor truck. It is conceded that he made one delivery of cans; that other deliveries remained to be made; that he could make no more until the motor trucks of other consignees arrived. At about 1 o'clock a. m. Norris was seen walking on roadway A easterly toward Eleventh avenue. Shortly afterwards his body was discovered on roadway B, about 500 feet west of its convergence with roadway A. Norris was in a dying condition and shortly afterwards died. The proof justified the conclusion that Norris had been struck at Eleventh avenue, where the two roadways converged, by a fast-moving motor truck going west on roadway B; that his body had been carried on the fender of the truck until, when the truck circled back, it was deposited on roadway B at the point where it was found. The question arises whether the State Industrial Board justly found, under the circumstances stated, that Norris was in the course of his employment when the motor truck ran him down.

The fact that Norris was not actually at work when the accident occurred does not impugn the finding; nor does the fact that he was, at the time, absent from the precise spot where his work must have been performed. Due to the nature of his employment, there was a temporary cessation of the work. Norris was obliged to suspend until such time as further motor trucks, to which he could make delivery, might arrive. During the interim he was not required to remain a prisoner caged in the freight car containing the cans to be unloaded. It has been held that a laborer sitting in the doorway of his employer's plant during the idle noon hour is in the course of his employment. Matter of Domres v. Syracuse Safe Co., 240 N. Y. 611, 148 N. E. 727. The same holding has been made in the case of a night watchman who leaves his box and retires to a shanty to cook and eat his food (Morris v. Lambeth Borough Council, 8 B. W. C. C. 1); of a lighterman, employed to pump out a stranded barge, who, while waiting for the tide to float the barge, that he may embark upon it, attempts to board a nearby boat, in order to obtain a rest, and is thereby injured (May v. Ison, 7 B. W. C. C. 148); of a workman, employed to reconstruct telegraph lines, who takes refuge from a storm under railway cars standing on a siding, and is injured when a freight engine moves the cars (Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177, 154 N. Y. S. 620, affirmed 217 N. Y. 627, 111 N. E. 1092); of a locomotive engineer who temporarily leaves his engine to go to his boarding house near by and is killed while crossing the railway tracks (North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159). The workman Norris, when struck by the motor truck, may have been on his way to the flag shanty, to warm himself before the stove, or to the yardmaster's office, to use the toilet. Again, he may have gone to the place where he was hit in order to watch and wait for the trucks of consignees, upon the arrival of which the resumption of his work depended....