Opinion
September 28, 1938.
Present — Hill, P.J., Rhodes, Crapser, Bliss and Heffernan, JJ.
Appeal from an award to claimant for disability compensation. Claimant was employed by the employer herein as a helper on a locomotive, at the foot of Forty-third street, Brooklyn, N.Y. The Board has found that while the claimant was waiting in a shanty for a float, in the company of other members of the crew, a co-worker pulled his shoe off and threw it into another railroad car, and while the claimant was attempting to retrieve his shoe he slipped and fell from the car into which his shoe had been thrown and sustained the injuries for which the award has been made. The appellant objects to the award on the ground that the injuries were the result of horseplay initiated by claimant; that in retrieving his shoe claimant abandoned his employment for the reason that he had testified that his duties did not carry him to the car where the shoe was thrown. The evidence supports the finding of the Board. Award unanimously affirmed, with costs to the State Industrial Board.