Opinion
February 16, 1971
Appeal from a decision of the Workmen's Compensation Board, filed August 14, 1969. Decedent, a district sales manager, while driving a company car, was struck and killed by a railroad train at Alden, New York. The record indicates that decedent resided in Elmira, New York, and was directed to attend a company meeting in Buffalo, New York. The meeting finished at approximately 6:00 P.M. and the decedent and several of his coworkers who had attended the meeting went to the Clinton Aire Motel for a business discussion and drinks. At approximately 8:30 P.M., decedent left the motel and was en route home at the time of the fatal accident. He was proceeding along the railroad right of way and on the railroad tracks at the time of the fatal accident. The board found: "The decedent was an outside worker and was within the coverage of his employment from the time he left his home until he returned. * * * the record is devoid of any proof that the decedent had deviated * * * or * * * abandoned his employment. The fact that the decedent may have been negligent in traveling alongside the railroad right of way and on the railroad tracks at the time of the fatal accident does not defeat his compensation rights. A finding is made that the decedent sustained a fatal accident arising out of and in the course of employment." Substantial evidence supports the determination of the board. Appellants, while conceding that decedent was an outside employee and thus covered for normal risks of travel until he reached home, contend that decedent's conduct was not reasonable since the risks incurred by his conduct could not be considered to have arisen or be in any way incident to his employment. Where the reasonable inference from the evidence is that an unwitnessed accident occurred in the course of decedent's employment, the presumption is that it arose out of employment (Workmen's Compensation Law, § 21; Matter of Lo Monico v. Coca Cola Bottling Co. of N.Y., 28 A.D.2d 1053). Here the presumption has not been effectively refuted. Decedent was traveling in a course which was taking him in a homeward direction. Although he may have been improvident or negligent in choosing his course of travel, this will not remove him from his employment. There is no evidence to indicate that decedent's deviation from the public highway was more than a mistake in direction occasioned by a confusing combination of back roads and limited vision. Although he may unintentionally have become trapped on the tracks, this alone does not defeat recovery (see Matter of Post v. Tennessee Prods. Chem. Corp., 19 A.D.2d 484). Furthermore, since the accident occurred when decedent was apparently on his way home, it properly could be assumed that if he could speak, he would give a reasonable account of his action ( Matter of O'Sullivan v. Woods Theatre Co., 195 App. Div. 609). Decision affirmed, with costs to the Workmen's Compensation Board. Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur; Herlihy, P.J., concurs in the following memorandum: While there was a possibility in Matter of Post v. Tennessee Prods. Chem. Corp. ( 14 N.Y.2d 796) of some work-connected reason (automobile trouble, confusing signs, et cetera), such a likelihood is not here present, even though, as in Post, the decedent was an outside worker and the automobile was work-connected. I would vote to reaffirm my dissent in Post (see 19 A.D.2d 484-487) except for the Court of Appeals decision, which seems to require my affirmance.