Summary
In Laurino v. Donovan, 183 App. Div. 168 [ 170 N.Y. Supp. 340], and 186 App. Div. 386 [ 173 N.Y. Supp. 619], the right to recover was predicated upon the circumstance that the injury was caused by the negligence of a fellow-employee, acting in the course of his employment, while they were both working upon the employer's premises.
Summary of this case from Storm v. Industrial Accident CommissionOpinion
May 8, 1918.
Amos H. Stephens [ E. Clyde Sherwood and William B. Davis of counsel], for the appellants.
No brief for the respondents.
The claimant was doing his master's work. His fellow-servant, Earle, by whose act he was injured on March 2, 1917, was not in the commission of such act doing the work of the master or representing him in any sense whatever. He brought into the garage where the claimant was at work a percussion cap which he had found somewhere not on the premises of the employer, and with which he was experimenting when it exploded injuring the plaintiff. Both men were chauffeurs, and the percussion cap which occasioned the injury had nothing to do with their employment. Earle in experimenting with it was merely gratifying his curiosity. The injury, therefore, did not arise "out of" the employment. (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 10; Id. § 3, subd. 7, as amd. by Laws of 1916, chap. 622.) I do not think the case is distinguishable in principle from Matter of De Filippis v. Falkenberg ( 170 App. Div. 153; affd., 219 N.Y. 581) and Matter of Saenger v. Locke (220 id. 556). As stated in the case last cited: "The injury must be received as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work." Such is not this case, and hence I favor a reversal.
All concurred, except JOHN M. KELLOGG, P.J., and WOODWARD, J., dissenting.
Award reversed and claim dismissed.