Ziolkowski v. American Radiatorco
| Decision Date | 27 March 1928 |
| Citation | 247 N.Y. 513,161 N.E. 164 |
| Parties | ZIOLKOWSKI v. AMERICAN RADIATORCO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Proceedings under the Workmen's Compensation Law by Mary Ziolkowski, a widow, on behalf of herself and infant children, for the death of Joseph Ziolkowski, her husband, claimant, opposed by the American Radiator Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. An award by the State Industrial Board was reversed and the claim dismissed by the Supreme Court, Appellate Division (222 App. Div. 708, 224 N. Y. S. 942), and the State Industrial Board appeals.
Order of Appellate Division reversed, and award of State Industrial Board affirmed.
Appeal from Supreme Court, Appellate Division, Third department.
Albert Ottinger, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for appellant.
Clarence B. Tippett, of New York City, for respondents.
Joseph Ziolkowski was employed to operate an electric crane used in the yards of a foundry of the American Radiator Company. His duties required him to sit upon an iron stool in the cab of the crane. The cab was small. Ziolkowski's hours of work began at 5 o'clock in the afternoon. They continued ordinarily till the early morning hours. The night of January 27, 1927, was cold-it is said the coldest night of the winter. The cab was unheated. At 11 o'clock that night the foreman passed the cab where Ziolkowski was working and called to him: ‘How is everything?’ Ziolkowski answered: ‘Pretty cold, but I think I can stick it out’. Two hours thereafter, while Ziolkowski was still in the cab of the crane, his clothes caught fire. Two pails of hot coal were at that time in the small cab. The Industrial Commission has found that Ziolkowski's clothing caught fire from the contents of the pails. Ziolkowski died the same day as a result of burns.
The crane was operated by electricity. The pails of hot coal in the cab had been placed in the cab for the purpose of keeping the operator warm. They were placed there by the operator without the permission or knowledge of the employer. Doubtless they were so placed by the operator for his own comfort while working. An award to the dependents of the deceased employee has been reversed, and their claim dismissed, on the ground that the injury did not arise out of the employment, and as a natural incident to the work.
It is natural for a workman exposed to the discomfort of great cold to try to keep...
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