Procaccino v. E. Horton & Sons , 95 Conn. 408 ( 1920 )

The question in controversy in this case is whether the injury to the employee arose within and out of the course of his employment. The two neighboring footbridges over the canal, maintained by neighboring plants, were used indiscriminately by employees of the nearby plants. The fact that the defendant and an adjoining manufacturing concern owned and controlled one of the footbridges crossing the canal, from which a pathway led over the railroad tracks to Main Street, and which bridge apparently had no other use than as a way of approaching or leaving the plants to and from Main Street, practically makes the inference necessary that this footbridge and the pathway from it over the railway tracks, was a method of approach to the defendant's plant for employees situated as the decedent was, and one which was contemplated by the defendant for employees in its service. The indiscriminate use of both footbridges by employees of neighboring plants as the method of approach for employees in the situation of the decedent, the acquiescence of the employer in such use, in connection with the facts found, leads irresistibly to the inference that the method of approaching the defendant's plant which this employee customarily used, was a method of approach which the defendant contemplated that employees, whose homes were situated as this employee's home was situated, would ordinarily use in going to and from the Horton plant. The defendant's employment of the decedent, therefore, contemplated that he would approach and leave the plant by passing to and from the highway over private property, including either of the footbridges and the railway tracks parallel with Main Street.

Under these circumstances this employee was within the scope of his employment when he was passing to or from his work at the plant over the private property lying between Main Street and the plant. In other words, the use of this method of approach to the plant by this employee was an incidental term of his contract of employment annexed to it by the consent of his employers. Merlino v. Connecticut Quarries Co.,93 Conn. 57, 104 A. 396. When this employee, under the facts found, entered upon the private property lying between Main Street and the defendant's plant, he came within the zone of his employment, and all dangers and perils incident to the use of this method of approach were perils incident to and arising out of his employment.

It does not render the dangers of this contemplated method of approach any less an incident of the decedent's employment, that there existed a method of approach by way of the Warehouse Point highway which would permit him to cross the railroad tracks on a highway. This method of approach, for persons in the situation of the decedent, was highly inconvenient, and it was not contemplated by the defendant that the employee should ordinarily use it. Apparently, the approach to this plant by way of the Warehouse Point road involved a much longer passage over private property than the method of approach followed by the decedent. If our interpretation of the finding is correct, there was no way to reach the Horton plant, that did not involve passing over private property.

In Fumiciello's Case, 219 Mass. 488, 107 N.E. 349, crossing the railway tracks was not a method of approach to the employer's plant, which the employer contemplated that all employees living in certain localities should use; and in that particular is distinguished from this case. Furthermore, it does not appear in that case that the railway tracks were directly adjacent to the plant or constituted one of several strips of private property lying between the plant and a highway.

In Sundine's Case, 218 Mass. 1, 105 N.E. 433, the claimant was injured while upon stairs over which her employer had no right of control, but the use of which by her was contemplated in her employment. The fact that she was a licensee or trespasser on another's property did not bar the claimant's recovery of compensation. The fact that her use of the stairway was contemplated by the employer, was, apparently, the essential fact which made such use an incident of her employment. The fact that the stairway was the only method of approach, conclusively established the fact that the use was contemplated by the employer. The fact that the contemplated way of approach in the present case may have passed over several strips of land owned by several different proprietors, would not change the legal effect of the situation. The private property passed over was, as a whole, adjacent to the plant. If the stairway in the Sundine case had passed through several floors of the building, each floor owned by a different proprietor, would the employer in that case only have been held liable for an injury on the stairway occurring on the floor first entered by the employee? The answer is obvious.

We hold that the decedent at the time of his injury was using a way of approach over private property from a highway to the defendant's plant, which way of approach the defendant, in its employment of the decedent, contemplated that he should use; and that the decedent in such use of the way was, after he left the highway, in the course of his employment, and that the injury arose out of a danger incident to his employment. 1 Honnold on Workmen's Compensation, p. 368;O'Toole's Case, 229 Mass. 165, 118 N.E. 303; Keaney'sCase, 232 Mass. 532, 122 N.E. 739; Starr Piano Co. v.Industrial Accident Com., 181 Cal. 433, 184 P. 860;Papineau v. Industrial Accident Com. (Cal.),187 P. 108; 9 B. W. C. C. p. 459; Merlino v. ConnecticutQuarries Co., 93 Conn. 57, 104 A. 396; Carter v. Rowe,92 Conn. 82, 101 A. 191; Chartres on Judicial Interpretation of Workmen's Compensation Law, p. 233.

There is error, the judgment is reversed and the Superior Court directed to enter its judgment sustaining the appeal from the Commissioner, vacating his award, and directing him to make an award in favor of the claimant for such amount as the facts found may warrant.

In this opinion the other judges concurred.