Opinion
May 4, 1949.
Appeal from Workmen's Compensation Law.
Decedent was an outside worker. His mangled remains were found on some subway tracks about 240 feet east of the main platform of the Independent Subway Station at Broadway and Nassau Streets in the city of New York, and opposite what is called a catwalk. He had been struck by a subway train. Appellants contend that decedent's position on the catwalk prior to the accident had no connection with his employment, although they conceded on the hearings that if he had been on the platform proper he would have been covered. The accident was unwitnessed and the board applied the presumption created by section 21 of the statute. Award affirmed, with costs to the Workmen's Compensation Board. Foster, P.J., Brewster and Santry, JJ., concur; Bergan, J., dissents in the following memorandum in which Deyo, J., concurs: The presumption created by section 21 Work. Comp. of the Workmen's Compensation Law must rest on some fact tending to connect the accident with the employment. There is no such fact in this record. It is not enough to say the employee was on the station platform in the course of employment. He was not on the platform when injured. Where he was and what he was then doing are crucial and controlling facts, as an examination of the long line of authorities will demonstrate. Certainly there is substantial evidence here that he was not selling anything in his employer's import-export business in the Brooklyn tunnel. Nothing he could be doing there would have any possible relationship to employment. To invoke the presumption here is to invoke it without evidence. I dissent and vote to reverse.