Opinion
May, 1936.
Appeal from State Industrial Board.
The employer was engaged in the business of unloading ships carrying grain, in the city of Buffalo, and furnishing men to do that work. The decedent was a shoveler or "scooper," who took part in the unloading. It was necessary to do some work on the dock, as well as on the ship, in placing the mechanism used in the work. The men used their own "scoops" and decedent had his initials painted on his. The ship Yates was unloaded at five P.M., and the decedent and his fellow-workers were told to get their suppers, and report at ship McFarland at seven o'clock P.M., to begin the work of unloading her at the Seneca Elevator, about the distance of two city blocks from where the Yates was moored. The decedent was not seen alive again by any of the witnesses. When he failed to appear on the McFarland at seven o'clock, a search for him was instituted. On leaving for supper decedent placed his scoop in the "shanty." It was found on the dock, about ten feet from the stern of the ship, and about one hundred feet away from the ladder which was used to go aboard. The scoop was found at a point on the dock which the decedent would necessarily pass in reaching the ladder. The body was found near the ship floating in the water under the dock. Award affirmed, with costs to the State Industrial Board. Hill, P.J., Rhodes, McNamee and Bliss, JJ., concur; Crapser, J., dissents, and votes to reverse the award and to dismiss the claim, on the ground that the injuries which resulted in death did not arise out of and in the course of the employment. (See Matter of Barber v. Harvey Eddy Co., 265 N.Y. 661.)