Imágenes de páginas
PDF
EPUB

where a workman's hand was crushed when he attempted, while engaged in operating a triphammer, to remove a tin can placed on

cident arising out of and in the course of the employment. For these reasons I think the appeal must be allowed." Mathews, L. J., observed at page 182: "The Act gives compensation in respect of accidents 'arising out of and in the course of the employment.' If the words had been merely ‘arising the course of the employment,' possibly the result might have been different: but we have to deal with the additional words 'out of,' which we must suppose to have been introduced by the Legislature for some reason." And Cozens-Hardy, L. J., said at page 183: "I think that some meaning must be given to the words 'out of' in the section. They appear to point to accidents arising from such causes as the negligence of fellow workmen in the course of the employment, or some natural cause incidental to the character of a business. An accident arising out of the dangerous nature of a business carried on, and not involving any human agency, such, for instance, as spontaneous combustion of some material, might be said to arise out of the employment. But I do not think that an accident caused by the tortious act of a fellow workman having no relation whatever to the employment can be said to arise out of the employment." In Wrigley v. Nasmyth, Wilson & Co., Workmen's Compensation Reports (England) 1913, p. 145, it was held that where a turner while larking with another turner was knocked into a lathe, thereby injuring himself, the accident did not arise "out of and in the course of the employment" within section 1, subdivision 1, of the Workmen's Compensation Act, 1906. In Hillis v. Shaw, Id. p. 744, it was said: "A domestic servant whilst in the course of her employment was accidentally shot and injured by a farm laborer, who was carrying a gun from the house to the fields, where it was required by the employer for the purpose of shooting crows. In reply to the question, 'Did he present it at you in a joke?' put by the county court judge, the injured servant stated: 'He might have pointed it at me; it was not intended.' Held, that the evidence given by the servant herself was suf ficient to justify the conclusion that the injury was caused by the larking or fooling of the laborer; and that therefore this was not an accident arising out of the employment within the meaning of section 1, subdivision 1, of the

Workmen's Compensation Act, 1906."

The injury did not arise out of the employment, where an employé was injured from falling while carrying a filled bucket down a flight of stairs, due to a coemploye's taking advantage of his peculiar susceptibility of being tickled (Coronado Beach Co. v. Pillsbury [Cal.] 158 Pac. 218); where a workman's eye was destroyed from being struck by a spring ejected playfully by a coemployé from a trick camera (Fishering v. Pillsbury [Cal. 1916] 158 Pac. 215); where an employé was injured from hot water turned on him by a fellow employé as a practical joke (Vittorio V. California Pottery Co., 3 Cal. 1. A. C. Dec. 26); where a workman fell and was permanently crippled as a result

the lower die by a bystander, his injury arose out of his employment, though the bystander placed the can on the die for fun in

of being hoisted on a crane by his fellow workmen as a practical joke (Fitzgerald v. Clarke & Son [1909] 1 B. W. C. C. 197, C. A.); where a workman's injury was due to fellow workmen, who stumbled into him while indulging in horseplay (English Act 1897; Falconer v. London & Glasgow Engineering & Iron Shipbuilding Co., Ltd. [1901] 3 F. 564, Ct. of Sess.); where a workman injured himself while rescuing a fellow workman who had become involved in danger as a result of horseplay (Mullen v. Stewart & Co., Ltd. [1909] 1 B. W. C. C. 204, Ct. of Sess.); nor where a housemaid was struck in the eye and injured by a ball which was thrown at her playfully by a nurse under the same employer (Wilson v. Laing [1910] 2 B. W. C. C. 118, Ct. of Sess.). Injuries resulting from inexcusable horseplay on the part of a fellow servant who was using a compressed air hose in cleaning his clothes after work, and inserted the hose into the workman's rectum, did not arise from the performance of services "growing out of and incidental to his employment." (St. 1915, § 2394-3, subd. 2) Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143.

In Ely v. M. S. Brooks & Sons, 1 Conn. Comp. Dec. 390 (superior court reversing commissioner), where the claimant while working was struck in the eye by a piece of wire thrown by a girl working near by, in a spirit of fun and to attract his attention, it being 'necessary after some time to have the eye removed, it was held the injury did not arise out of the employment. In Carrigan v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 327 (affirmed by the superior court on appeal), where deceased and a fellow workman were working near each other sorting scrap metal with pointed sticks, and the fellow workman, being hit by a bullet thrown by some one in a spirit of fun, made at the deceased with his stick, which was run through deceased's wrist when he threw up his arm to parry the thrust, it was held such accident did not arise out of the employment, though it did occur in the course of the employment. But in Griffin v. A. Roberson & Sons, The Bulletin, N. Y., vol. 1, No. 10, p. 18, compensation was awarded, though it was not clear whether the employé fell as the result of the work he was doing, or in trying to ward off some foolish action of a coemployé, where it appeared that whatever was done was done while he was at work. And in Grandfield v. Bradley Smith Co., 1 Conn. Comp. Dec. 479, where a girl, requiring an empty box for her work, which should have been supplied her by a boy hired for that purpose, went to get one from another boy, who supplied another table, and was resisted by him in a spirit of fun, and injured, it was held the injury arose out of her employment. This case was distinguished from other cases of play by the fact that the claimant was not engaged in play, but was in the performance of her duties.

which the injured workman took no part.20 An injury to the eye did not arise out of the employment where the employé while in the toilet felt something strike her arm, and looked through a crack to see were the article had come from, whereupon a girl in the adjoining toilet thrust some scissors through the crack into her eye.21

§ 122. Area of duty-Absence-Entry and exit

A distinction must be drawn between the doing of a thing recklessly or negligently which the workman is employed to do and the doing of a thing altogether outside and unconnected with his employment. A peril which arises from the negligent or reckless manner in which an employé does the work he is employed to do may well be held to be a risk incidental to the employment. Otherwise in the other case.22 As said by Judge Holt, of the Minnesota Supreme Court, in a recent opinion: "When a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place, to do something in the furtherance of his master's business, and meets with accidental injury therein, the trial court's finding that the accident arose out of and in the course

20 (Wk. Comp. Act, § 1) Knopp v. American Car & Foundry Co., 186 Ill. App. 605.

21 De Fillipis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761. 22 Barnes v. Nunnery Colliery Co., Ltd. (1911) 4 B. W. C. C. 43, C. A., and (1912) 5 B. W. C. C. 195, H. L.

A workman who, on being instructed by a subforeman to come down off a roof, where he was working, for lunch, descended by means of a loose rope extending over the edge of the roof, the end of which he directed a fellow workman to hold for him, instead of using a ladder securely fastened to the side of the building, received a "personal injury arising out of his employment" (Clem v. Chalmers Motor Co., 178 Mich. 340, 144 N. W. 848, L. R. A. 1916A, 352); but where one employed in the construction of a railroad was ordered by the fire warden to assist in extinguishing a forest fire, as authorized by statute, an injury received while he was so working did not arise out of his employment. Kennelly v. Stearns Salt & Lumber Co. (Mich. 1916) 157 N. W. 378.

of employment should not be disturbed, unless it is clear that the ordinary servant, in the same situation, would have no reasonable justification for believing that what he undertook to do when injured was within the scope of his implied duties." 23

It is a controlling factor in determining whether an injury arose out of the employment whether the employé was within the area of his duty. For example, the accident arose out of the employment where a delivery boy was injured from being thrown from a bicycle after he had called at his home and taken lunch and while he was on his way to make a delivery, where the driver of an express motor truck, within the scope of his employment, was crossing the street on foot to deliver a package, and was struck and killed by an automobile while so doing,25 where a civil engineer sent to survey a quarry and bring his notes back to the home office for inspection and consultation was drowned on the wrecking of the steamship while he was returning,26 where a shipmaster who went ashore to pay a labourer's wages at a public house, at which he remained. two hours, on his return, quite sober, fell from the dock and was drowned, but not where the employé fell and was injured during the noon hour, while racing with other employés,28 where a workman after his day's work cutting ice put up his tools, and started home by a short cut across the pond instead of by the public highway, and while crossing the pond slipped and fell,29 where a workman was injured while stepping off a car on his way. to work, about two hundred feet from where his work was, and be

27

23 State v. District Court, 129 Minn. 176, 151 N. W. 912.

24 (Wk. Comp. Act, pt. 2, § 1) Beaudry v. Watkins (Mich.) 158 N. W. 16. 25 Miller v. Taylor (Sup.) 159 N. Y. Supp. 999.

26 Hutchinson v. Pacific Engineering & Construction Co., 2 Cal. I. A. C. Dec. 600.

27 Jones v. Ship Alice and Eliza (Owners of), (1910) 3 B. W. C. C. 495, C. A.

28 Thompson v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 145 (decision of Com. of Arb.).

29 Atkins v. Scranton, 1 Conn. Comp. Dec. 34.

21

fore time for him to begin work," where a typesetter working overtime late at night went out for lunch by an unusual way, over a freight elevator through a rear door used only to admit freight, and on returning stepped into an open space between the elevator and the street, where a buyer and department manager, while in a bathroom of a hotel during a business trip, became faint and unconscious and fell to the floor, striking her face and sustaining an injury thereby,22 nor where a workman visited a building which his employer was constructing, for purposes of his own at a time when he was not engaged in doing any of his employer's work, and was injured. and night is not acting in the course of his employment while at home or going to and from meals at his home unless a fire alarm should come in and he should start to a fire. In the absence of such fire alarm, he is acting in the course of his employment only. when he is about the fire engine house or at a fire or otherwise discharging duties connected with his employment.3

A fireman employed upon continuous duty day

It does not prevent an injury from arising out of the employment that the workman had no express authority to do the particular act, that he was not acting strictly in accordance with his in

35

30 McWilliams v. Haskins, 1 Conn. Comp. Dec. 324.

21 Wheatley V. Journal Publishing Co., 1 Conn. Comp. Dec. 110.

22 Jacobs v. Davis-Schonwasser Co., 2 Cal. I. A. C. Dec. 1013.

33 Lynn v. Employers' Liab. Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases, 507 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

34 Perry v. City of San Jose, 1 Cal. I. A. C. Dec. 537. Where an employé is hired to be upon continuous service day and night as a fireman, it does not follow that every accident received in the course of the 24 hours arises out of the employment. If he were injured by stepping upon his rake while taking care of his lawn, it would not arise out of his employment as fireman. Where he borrows a horse to ride to his home for a meal, and is injured by the horse slipping and falling in coming into the yard of the engine house on his return from his meal, such accident does not arise out of his employment, and he is not entitled to compensation for his injury. Id.

35 Where an employé was injured from attempting to form an unexploded dynamite shell into a key, believing the shell to have been exploded, and he

« AnteriorContinuar »