Citation Numbers: 128 N.E. 711, 229 N.Y. 470, 13 A.L.R. 522, 1920 N.Y. LEXIS 702
Judges: Cardozo
Filed Date: 10/19/1920
Status: Precedential
Modified Date: 11/12/2024
The claimant while engaged in the performance of his duties in the employer's factory was struck by an apple which one of his fellow-servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horse-play, and had no knowledge of it till injured. The question is whether the accident was one "arising out of and in the course of employment," within the meaning of the statute (Workmen's Compensation Law, sec. 3, subd. 7; Consol. Laws, chap. 67).
That it arose "in the course of employment" is unquestioned. That it arose "out of" employment, we now hold. The claimant's presence in a factory in association with other workmen involved exposure to the risk of *Page 472
injury from the careless acts of those about him. He was brought by the conditions of his work "within the zone of special danger" (Thom v. Sinclair, 1917 A.C. 127, 142). Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with KALISCH, J., in Hulley
v. Moosbrugger (
We think the precedents in this state, whatever variance of view there may be in other jurisdictions, sustain our present ruling. This case is not within the principle of Matter ofDeFilippis v. Falkenberg (
The order should be affirmed with costs.
HISCOCK, Ch. J., CHASE, HOGAN, POUND, CRANE and ELKUS, JJ., concur.
Order affirmed.
Borden Mills, Inc. v. McGaha , 161 Tenn. 376 ( 1930 )
Xenia Rural Water District v. Vegors , 2010 Iowa Sup. LEXIS 83 ( 2010 )
Cassell v. United States Fidelity & Guaranty Co. , 115 Tex. 371 ( 1926 )
Texas Employers' Insurance v. Andrews , 130 Tex. 502 ( 1937 )
Clodgo v. Rentavision, Inc. , 166 Vt. 548 ( 1997 )
Bouchard v. HE Sargent, Inc. , 152 Me. 207 ( 1956 )
Hill v. Liberty Motor & Engineering Corp. , 185 Md. 596 ( 1946 )
Sizemore v. State Workmen's Compensation Commissioner , 160 W. Va. 407 ( 1977 )
Fazio v. Cardillo , 109 F.2d 835 ( 1940 )
Rodgers v. Kemper Construction Co. , 124 Cal. Rptr. 143 ( 1975 )
Hodges v. Workers' Comp. Appeals Bd. , 147 Cal. Rptr. 546 ( 1978 )
Carvalho v. Decorative Fabrics Co. , 117 R.I. 231 ( 1976 )
Cunning v. City of Hopkins , 258 Minn. 306 ( 1960 )
McKenzie v. Railway Express Agency, Inc. , 205 Minn. 231 ( 1939 )
Schenck v. Aaa Auto Wrecking Co. , 1943 La. App. LEXIS 333 ( 1943 )
Blaine v. Huttig Sash & Door Co. , 232 Mo. App. 870 ( 1937 )
Coleman v. Swift-Eckrich , 281 Kan. 381 ( 2006 )
Walsh v. Chas. Olson & Sons, Inc. , 1969 Minn. LEXIS 975 ( 1969 )
Xue Lu v. Powell , 621 F.3d 944 ( 2010 )
Standard Acc. Ins. v. Stanaland , 1926 Tex. App. LEXIS 969 ( 1926 )