47

43

45

42

46

49

ing, hoist, stays, ladders, or other mechanical contrivances which are unsafe, etc. The word has been held to include a car,1 a derrick, an oil well derrick, a machine, an aqueduct, a canal, a dirt fill,48 a sky sign erected on the roof of a building," a fence, a bay window, a railroad,52 elevated railroad tracks, electric poles and wires, a mine or pit sunk within a mining claim, 55 passageways in mines,56 a vessel in course of construca sea-going vessel in dry dock for repairs, 58 a vessel to the sides of which iron plates were being attached," a boiler

tion,57

41.

42.

51

54

Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187.

Corbett v. New York Cent. & H. R. R. Co., 151 App. Div. 159, 135 N. Y. Supp. 137; Caddy v. Interborough Rapid Tr. Co., 125 App. Div. 681, 110 N. Y. Supp. 162, 195 N. Y. 415, 88 N. E. 747, 30 L. R. A. (N. S.) 30. 43. Stevens v. Stanton Const. Co., 153 App. Div. 82, 137 N. Y. Supp.

1024; Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187.

44. Showalter v. Lowndes, 56 W. Va. 462, 49 S. E. 448, 3 Ann. Cas. 1096, Citing Loonie v. Hogan, 9 N. Y. 435, 61 Am. Dec. 683; Lyon v. McGuffey, 4 Pa. 126, 45 Am. Dec. 675.

45. Hardaway v. Southern R. Co., 90 S. C. 475, 73 S. E. 1020, Ann. Cas. 1913D, 266.

46. Nash v. Com., 174 Mass. 335, 54 N. E. 865.

47. Pacific Rolling Mill Co. v. Bear Valley Irr. Co., 120 Cal. 94, 52 Pac. 136, 65 Am. St. Rep. 158.

48. Clement's Adm'rs. v. Putman, 68 Vt. 285, 35 Atl. 181.

49. New York v. Wineburgh Advertising Co., 122 App. Div. 748, 107 N. Y. Supp. 478; Kobbe Co. v. New York, 122 App. Div. 755, 107 N. Y. Supp. 489.

50. Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345. 51. State v. Kean, 69 N. H. 122, 45 Atl, 256, 48 L. R. A. 102.

52. Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. 470, 8 L. R. A. 700; Ban v. Columbia Southern R. Co., 117 Fed. 21, 54 C. C. A. 407; New York, N. H. & H. R. Co. v. New Haven, 70 Conn. 390, 39 Atl. 597.

53. Flanagan v. Carlin Const. Co., 134 App. Div. 236, 118 N. Y. Supp. 953.

54. Forbes v. Willamette Falls El. Co., 19 Oreg. 61, 23 Pac. 670, 20 Am. St. Rep. 793.

55. Helm v. Chapman, 66 Cal. 291, 5 Pac. 352. Contra, Williams v. Mountaineer Gold Min. Co., 102 Cal. 134, 34 Pac. 702.

56.

Jackson v. Yak Mining, M. & T. Co., 51 Colo. 551, 119 Pac. 1058. 57. Chaffee v. Union Dry-Dock Co., 68 App. Div. 578, 73 N. Y. Supp. 908. 58. Gruner v. Texas Co., 133 App. Div. 413, 117 N. Y. Supp. 741.

59. Herman v. Fitzgibbons Boiler Co., 136 App. Div. 286, 120 N. Y. Supp. 1074.

and engine, built in the basement of a building and constructed on permanent foundations, the boiler being inclosed by a brick wall,60

62

63

64

61

An oil well, with derrick, engine, boiler, pumps, piping, and appliances attached thereto, was held to be a structure. It has 'been held that the word "structure" does not include a common dirt road, a town site, a mine, a boiler, 65 a railroad, 64 a spillway in connection with a dam, a moving train of cars, s the building of a broom-corn shed on a farm,69 swings or seats in a dancing hall,70 a fence enclosing a railroad right-of-way," a building after it has been torn down."2

§ 126. Subway.-Under the New York Act a city is engaged in a hazardous employment when it is constructing a subway, irrespective of the definition of the word "employment" given in the act.73

60. Phoenix Ins. Co. v. Luce, 11 Ohio Cir. Ct. Rep. 476, 5 O. C. D. 210. 61. Haskell v. Gallagher, 20 Ind. App. 224, 50 N. E. 485, 67 Am. St. Rep.

250.

62.

63.

McLaughlin v. Industrial Board, 281 Ill. 100, 117 N. E. 819.
Armitage v. Bernheim, Idaho -
187 Pac. 938.

64. Williams v. Mountaineer Gold Min. Co, 102 Cal. 134. 34 Pac. 702. 65. Conley v. Lackawanna Iron & Steel Co., 94 App. Div. 149, 88 N. Y. Supp. 123.

66.

192.

67.

68.

Massillon Bridge Co. v. Cambria Iron Co., 59 Ohio St. 179, 52 N. E.

Lee v. Barkhampsted, 46 Conn. 213. The court in this case said, in part: "We think the railroad track would be a structure. But the track was not the cause of the injury, even as claimed by the defendants, but appearance and noise of the moving train on the track was the cause, and this cannot well be construed as a part of the structure. The latter word in its connection, being a structure 'placed on such road,' obviously refers to some permanent stationary erection, rather than to a moving car or locomotive engine."

69. Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 328, L. R. A. 1916E, 329, Ann. Cas. 1917D, 1.

70. Lothian v. Wood, 55 Cal. 159.

71. State v. Walsh, 43 Minn. 444, 45 N. W. 721.

72.

Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435.
Sexton y. Public Service Commission, City of New York,

N. Y.

73.

App. Div.

- 167 N. Y. S. 493, 16 N. C. C. A. 668.

§ 127. Threshing Machine.-One engaged in feeding a threshing machine which is not a hazardous occupation cannot claim to be within the act on the ground that he is engaged in operating a vehicle, since the feeding did not begin until the machine became stationary."

One employed to feed a bean thresher, engaged in threshing beans for various farmers at their respective farms, and who injured his finger while pushing the thresher into a barn, was allowed compensation.75

§ 128. Undertaking. The business of undertaking is not an extrahazardous occupation and an employee injured while driving for another undertaking establishment could not be considered as engaged as a common carrier by land in order to bring him within the act.76

§ 129. Upholstering-Carpet Laying. The laying of carpets is not upholstering and cannot be considered such in order that it would bring the injured employee's occupation within the class designated as hazardous."7

§ 130. Vehicles. The provision of the New York Act relating to the operation of vehicles, includes an express man while delivering a package from his vehicle;78 a helper on a motor truck, while chasing mischievous boys;79 a taxicab starter, injured by slipping on a hotel stairway;80 a driver removing barrels from his employer's basement;81 a driver putting his horse in its

74.

Vincent v. Taylor Bros., 180 App. Div. 818, 168 N. Y. S. 287, 16 N. C. C. A. 673, 1 W. C. L. J. 692.

75. Hennessey v. Markendorf, 222 N. Y. 647.

76. Hochspeier Inc. v. Indus. Bd., 278 Ill. 523, 116 N. E. 121, 16 N. C. C. A. 665.

77. Strader v. Stern Bros., 184 App. Div. 700, 172 N. Y. Supp. 482, 3 W. C. L. J. 191.

78. Miller v. Taylor, 173 App. Div. 865.

79. Hendricks v. Seeman Bros., 170 App. Div. 133.

80. David v. Town Taxi Co., 175 App. Div. 958.

81. King v. Gross & Co., 179 App. Div. 966.

85

stall;82 a driver helping to repair a hand elevator which he used in delivering his load into a basement;83 but a driver for a coal and wood firm injured while splitting wood, is not included within the phrase "operation of vehicles;'"'s nor is an employee who has nothing to do with the operation of the vehicle, but whose duty in connection with the vehicle is merely loading it;s5 nor is a driver, injured while making deliveries afoot, several hours after putting up his horse;s nor is the driver of a florist's wagon while adjusting a window box for a customer, such work being in no way connected with the duties of a driver;87 nor is a superintendent of milk routes while on his way by street car to a route where he was to instruct a new driver.88

An elevator is not a vehicle, within the meaning of this provision.89 90 Nor is a hand sled, nor a hand truck.o1

A driver of a truck used in collecting dirt from city streets was engaged in the operation of vehicles, which is a hazardous employment.92

A policeman who, for his own convenience, was riding with a truck-man not in the employ of the village, and who was injured while alighting, was not at the time engaged in a hazardous occupation within the meaning of the Compensation Act.93

A salesman riding a motor cycle furnished by his employer for use in his work is engaged in a hazardous employment."

82. Smith v. Price, 168 App. Div. 421.

83. Kasper v. Clark & Wilkins Co., 175 App. Div. 958.

84.

Casterline v. Gillen, 182 App. Div. 105.

85. Hassen v. Elm Coal Co., 184 App. Div. 715; Roberto v. Schmadeke, 180 App. Div. 143.

86. Newman v. Newman, 169 App. Div. 745, 218 N. Y. 325.

87.

Glatzel v. Stumpp, 141 App. Div. 901, 220 N. Y. 71.

88. Balk v. Queen City Dairy Co., 184 App. Div. 631.

89. Wilson v. Dorflinger & Sons, 218 'N. Y. 84.

90. Rice v. All-Package Grocery Stores, 4 N. Y. Bul. 130, 19 S. D. R.

473.

91.

92.

Holtz v. Greenhut & Co., 175 App. Div. 878.

Putman v. Murray, 174 App. Div. 720.

93. Spinks v. Village of Marclus, 108 N. Y. App. Div. 732.

94.

Mulford v. A. S. Pettit & Sons, 220 N. Y. 540, 116 N. E. 344, B. 1 W. C. L. J. 1203.

An employee traveling with a threshing machine, although such work is not enumerated as a hazardous occupation it comes under the classification of vehicles and is within the compensation act.95

A snow scraper was held to be a vehicle within the meaning of the New York act making the operation of vehicles a hazardous occupation.96

An employee, engaged solely in the care of horses used by a company to draw its wagons is engaged in the operation of wagons, which entitles him to compensation equally with the actual drivers.97

§ 131. Vessels-Unloading.—A weigher of hides as they were unloaded from vessels was engaged in a hazardous occupation.98

The operation of vessels includes loading and unloading of vessels, within the New York Act. When the employer and owner is a New York Corporation, there is a presumption that the vessel is not one of another state or country.99

§ 132. Warehouse. "A warehouseman in the general acceptation of the term is one who receives and stores goods of others as a business, and for a compensation or profit. And it has been held that the fact that one receives no compensation for storage tends to show that he is not a warehouseman.”1

The Illinois constitution of 1871, art. 13, sec. 1, provides that "All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses."

One engaged in Illinois in storing grain for a compensation

95. White v. Loades, 178 App. Div. 236, 164 N. Y. Supp. 1023, 16 N. C. C. A. 673.

96. Berg v. Hetzler Bros., 179 App. Div. 551, 166 N. Y. Supp. 830, 16 N. C. C. A. 672.

97. Costello v. Taylor,

98.

Hiers v. John A.

N. Y., 111 N. E. 755, 11 N. C. C. A. 320. Hull & Co., 178 App. Div. 350, 164 N. Y. S. 767, B. 1 W. C. L. J. 1337.

99. Edwardsen v. Jarvis Lighterage Co., 168 App. Div. 368.

1. 27 R. C. L., p. 950, Sec. 2.