Claim of Ross v. Howieson ( 1921 )

H. T. Kellogg, J.:

The employer maintained a dressmaking plant on one of the upper floors of a building situate at No. 2 West Forty-seventh street in the city of New York. He did not own the building nor was he in possession of any portion of its rooms, hallways or staircases, other than those upon the floor where his plant was located. The claimant was a seamstress who worked in the plant of her employer. While entering the lower hall of the building she stepped , upon a piece of coal, slipped and fell to the floor, and sustained various injuries for which an award has been made.

An employee is defined in subdivision 4 of section 3 of the Workmen’s Compensation Law as follows: “'Employee’ means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” The sentence is badly constructed, owing to the fact, doubtless, that the subdivision as originally enacted was amended by the process of removing entire phrases therefrom and adding others thereto. (Laws of 1916, chap. 622; Laws of 1917, chap. 795.) The subdivision originally read as follows: “ ' Employee ’ means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” (Laws of 1914, chap. 41.) Read in the light of this previous enactment it is evident that the subdivision as now reconstructed requires that the employee rather than the employer shall be engaged in employment “ upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” The Workmen’s Compensation Law is thus made to embrace within its protection two distinct classes of employees, viz.: (1) Those actually upon the employer’s premises or at his plant; and (2) those who are absent from the plant or premises for the furtherance of the employer’s purposes while in the actual course of executing the same. As to all employees whose work is to be performed at a particular plant or place the cases are clear that the day’s work begins at the plant or premises, under the control of the employer, where such work is to be executed.'

In Manor v. Pennington (180 App. Div. 130) the employer was in possession of the first and second floors of a garage building where he was performing work of construction. An employee met with his death from an explosion of a boiler in the cellar of the building to which he had gone for the purpose of eating his mid-day meal. It was held that as the cellar was not the premises of the employer the claim made for the death of the employee was not compensable. In Etherton v. Johnstown Knitting Mills Co. (184 App. Div. 820) an employee went to the basement of the plant of her employer to set a bottle of tea on the boiler to heat it for her lunch, and was injured by a fall on the basement staircase. An award for her injuries was sustained. In Donlon v. Kips Bay B. & M. Co. (189 App. Div. 415) an award for the death of an employee, who fell down an elevator shaft while walking about the plant of his employer after having had lunch in a room of the plant set aside for that purpose, was affirmed. The distinction is that in the two last cases the accident occurred on the premises of the employer, while in the Manor case it occurred away from such premises. In the Manor case it was said: “ This accident did not occur upon the premises or at the plant of the employer, but upon the premises or at the plant of the Hannan & Henry Garage Company, where neither the employer nor the employee had any rights, except by the license of the owners; it occurred ‘ away from the plant of his employer ’ but not ‘ in the course of his employment.’ ” In Berg v. Great Lakes Dredge & Dock Co. (173 App. Div. 82) an employee fell into the water from a dock while waiting for a boat to take him to a dredge upon which he was employed and lived, and in consequence was drowned. A claim for his death was disallowed on the ground that the employee had not reached the premises of his employer. In Murphy v. Ludlum Steel Co. (182 App. Div. 139) it was held that an employee killed upon the premises of his employer was not within the Workmen’s Compensation Law for the reason that the place of the accident was not the premises upon which the business of the employer was conducted. In referring to subdivision 4 of section 3 of the Workmen’s Compensation Law the court said: “ Evidently the premises meant are not any lands which the employer owns, but rather the immediate premises or grounds upon which the plant is located.” That case was affirmed in 227 New York, 634. The same principle was involved in Matter of McInerney v. B. & S. R. R. Corp. (225 N. Y. 130), where an employee engaged to work in a railroad yard was injured on his way home at a point on the railroad right of way 3,000 feet from his place of work. The court said: “ The fact that an employee is on the ‘ premises ’ of his employer when those premises consist of a railroad right of way or yards does not have the significance which it naturally would have in the case of an ordinary manufacturing plant.” In Matter of Kowalek v. N. Y. Consol. R. R. Co. (229 N. Y. 489) it was held that a guard on a railroad train, who had finished his work, was not in the course of his employment while awaiting a train which would take him home although standing on the platform of a station of his employer, upon which he emerged at the. close of his work. In Matter of DeVoe v. N. Y. State Railways (218 N. Y. 320) it was said: “ The employee gets up in the morning, dresses himself and goes to work because of his employment, yet if he meets with an accident before coming to the employer’s premises or his place of work that is not a risk of his occupation but of life generally.” The case of Matter of Littler v. Fuller Co. (223 N. Y. 369) does not in the least derogate from the doctrine set forth in the cases cited. It was there held that an employee injured while being carried in a truck of bis employer from his place of work free of charge could have a recovery. The court said: “ The place of injury was brought within the scope of the employment because Littler, when he was injured, was ‘ on his way * * * from his duty within the precincts of the company.’ (Matter of DeVoe v. N. Y. State Railways, 218 N. Y. 318, 320.) The day’s work began when he entered the automobile truck in the morning and ended when he left it in the evening.” It was thus held in this exceptional case that “ the premises ” or “ the plant ” or “ the precincts ” of the employer must be considered as including the truck provided by the employer to convey his men to work. The doctrine of all the cases is to the effect that in the case of a laborer engaged to work at a factory or upon certain fixed premises he is not an employee within the meaning of the Workmen’s Compensation Law until he is at the plant or upon the premises of his employer and that an accidental injury sustained before he has arrived at or after he has departed from such plant or premises is not compensable. At the time of the accident in the case at bar the claimant had not arrived at a plant or upon premises owned, operated, possessed or in any wise controlled by her employer. It would be grossly unfair to employers to cast upon them the burden of protecting employees from all the perils attendant upon walking to or from their work through the innumerable hallways and over the many stairways of a great city building, commonly traversed daily by hundreds if not thousands of others than their employees, when such ways are not under their control and the perils arising therefrom can by them in no wise be obviated or .lessened. There must be a definite line the crossing of which begins or ends the liability of an employer for arriving or departing employees. That line has been fixed by subdivision 4 of section 3 of the Workmen’s Compensation Law at a point which bounds the plant or premises controlled by the employer for the purposes of the employment. In this view the claimant must fail in her case.

The award is reversed and the claim dismissed.

Cochrane, Kiley and Van Kirk, JJ., concur; John M. Kellogg, P. J., dissents.