Opinion
May 5, 1943.
Appeal from a decision dismissing a claim for death benefits.
The referee allowed the claim. The Board reversed the decision of the referee and dismissed the claim. Deceased was a night watchman. The buildings of the employer were on the east side of and close to the Albany Post Road. There was a dump leased by the employer adjacent to and on the west side of the road. Death resulted from being struck by an automobile. The body was found on the road only a few feet from the employer's buildings. A short time before the accident, which was unwitnessed, decedent purchased tobacco at a small store on the west side of the road, distant some forty or fifty feet from employer's buildings. There is evidence that it was decedent's duty to watch the dump for fires which might start. He was killed about eight o'clock P.M., after working from six P.M. Under the Workmen's Compensation Law as construed in Matter of Norris v. New York Central R.R. Co. ( 246 N.Y. 307), an award could have been made. The Board drew the inference, there being no direct evidence, that he was struck when returning from the store where he purchased tobacco. This court is required to affirm the determination of the issue of fact, leaving correction of error, if there be one, to the Industrial Board under its continuing jurisdiction. Decision affirmed, without costs. All concur.