Claim of Hoffman v. New York Central Railroad , 36 N.Y.S.2d 462 ( 1942 )

Hill, P. J.

(dissenting). The employer and self-insurer appeals from an award made to claimant for 100 per cent permanent loss of vision of the left eye. The injury was received when he fell on a concrete sidewalk, as he was crossing the employer’s premises to the building where he worked, striking his head and sustaining the injuries that caused the loss. The walk was covered with ice and sleet. 1 •

While possibly the Board might have found that the fall was due to dizziness, they did not, but rather that claimant fell while engaged in the regular course of his employment, striking his head, and that the injuries resulting “ arose out of and in the course of his employment.” It was in the line of his employment to walk to the building which he was approaching, and when the way was slippery through the presence of ice and sleet, the risk of injury by falling was incident to and a natural consequence of his work. (Matter of Connelly v. Samaritan Hospital, 259 N. Y. 137.) In the Connelly case the fall was the result of a cardiac condition; the injury was caused by the presence of a table in the room where , the claimant fell, against which she struck her head. Here the weight of the evidence sustains a finding that claimant did not fall , as the result of dizziness or any internal ailment. Matter of Andrews v. L. & S. Amusement Corp. (253 N. Y. 97) is distinguishable. The employee there was upon the street. Nothing about his employment created a special hazard. Here claimant necessarily passed over this slippery walk. The liability of a fall and injury occurred not only in the course of, but arose out of, the work. (Matter of Mausert v. Albany Builders Supply Co., 250 N. Y. 21.) Proof that claimant was walking along this icy surface in connection with his work is evidence from which the conclusion may be drawn that the injuries arose out of the employment, for it is known that pedestrians frequently fall when walking upon icy surfaces. This evidence, together with the presumption (Workmen’s Comp. Law, § 21, subd. 1), sustains the finding of the Board. (Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8; Matter of Donohue v. Yonkers Sash Weight Corp., 249 App. Div. 473; affd., 275 N. Y. 566.)

The award should be affirmed.

Crapser, J., concurs.

Award reversed and claim dismissed.