Opinion
May 4, 1927.
Appeal from State Industrial Board.
E.C. Sherwood [ William B. Davis of counsel] for the appellants.
Albert Ottinger, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
Whether or not the accident, which resulted in the death of deceased, arose out of and in the course of his employment is the question.
The employer manufactured hammers. Deceased was a night watchman in its employ. He was struck and killed by a New York Central train at the Fifth street crossing, Little Falls, N.Y., on Sunday, May 24, 1925, at five-four P.M. The company's plant was located on Mill street, which is south of and parallel to the tracks. The crossing is over six tracks and the southerly end is about fifty feet from the nearest entrance to the plant. The railroad company maintained gates and kept a gatetender there. Deceased lived on the northerly side. He had been accustomed to commence his work at six P.M. On this day, by a new arrangement, he had been asked to commence at five P.M., and he was hurrying. He was obliged to cross the tracks. That was the way for all. There was no way to cross by an overhead without going half a mile beyond. When he reached the tracks the gates were down. He went under the gates and was struck by a train and killed on the crossing.
The case of Cudahy Packing Co. v. Parramore ( 263 U.S. 418) is relied upon to sustain the award. That case arose under the provisions of the Utah Workmen's Compensation Act, which provides for the payment of compensation for personal injury or death of an employee by accident "arising out of or in the course of his employment." (Compiled Laws of Utah, 1917, § 3113, as amd. by Utah Laws of 1919, chap. 63.) The language is in the disjunctive. Our Workmen's Compensation Law (§§ 10, 2, subd. 7), however, defines an accidental injury as one "arising out of and in the course of the employment," and provides for compensation only in such cases. The language is in the conjunctive and, under our decisions, both elements must be present. ( Pierson v. Interborough Rapid Transit Co., 184 App. Div. 678; affd., 227 N.Y. 666; Tallon v. Interborough Rapid Transit Co., 232 id. 410, 414; Matter of Kowalek v. N.Y. Cons. R.R. Co., 229 id. 489.) Deceased was a plant worker. He met his accident on his way to work, before reaching his employer's premises, and even if it may be said that his accident arose out of his employment on the theory that he was hurrying to his work in the interest of his employer, nevertheless he was not yet at work and the accident did not occur in the course of his employment. ( Matter of Lampert v. Siemons, 235 N.Y. 311, 313.)
The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
VAN KIRK, Acting P.J., HINMAN, McCANN and DAVIS, JJ., concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.