said: "Under the rule first stated, if the employer were the owner of the building and the employee were injured on the elevator or stairs in reaching his place of work on a certain floor, it cannot be doubted that compensation is payable under the statute. The employee has reached the employer's premises and is using a means of access specially provided for that very purpose. It would seem to follow that if the employer did not own the building, but rented it all, compensation would still be payable, even though the employer did not operate or control the elevator, or have the control or care of the stairs, but such operation, control, and care remained with the owner of the building. The operation, control and care of the elevator and stairs in such a case would seem to be a matter wholly between the employer and owner of the building. It would not enter as between employer and employee and would be entirely extraneous to the employment. As to the employee it would be a matter of indifference whether the elevator or stairs necessary for access to the spot where he is to work are by the employer's lease operated and controlled by the latter or by the owner of the building, provided only that they are in fact furnished so that access by the employee may be had. There would seem to be no reason for allowing compensation where the employer controls the elevator for instance, and refusing it where he does not, when the fact as to who controls it is extraneous to the employment and the theory upon which compensation is now allowed under the Workmen's Compensation Act is not, as before, that the employer, either directly or through some agency or instrumentality under his control, has been guilty of some breach of duty toward the employee. So far as the employee is concerned, the elevator or stairs are a special means of access furnished him to get to his place of work, and, in effect, furnished him by his employer. By the lease the tenant has the right as an appurtenance of the premises leased to the use of the elevator or stairs for the purpose of access, and, so far as the tenant's employees are concerned, the elevator and the stairs are, in effect, a part of the employer's premises. ''18 18. Starr Piano Co. v. Indus. Comm., (1919), -Cal.-, 184 Pac. 860, 5 W. C. L. J. 14; In Re Sundrine, 105 N. E. 433, 218 Mass. 1, 5 N. C. C. A. Where an employee was crushed between cars while leaving premises, and using a route not intended for employees but not strictly prohibited, it was held that since there was no enforced rule against using this route that it could not be said that the accident did not arise out of and in the course of the employment.1o Neither could that be said where employees of different companies used the bridge of other companies indiscriminately in crossing canals.20 An employee stopped at a commissary to talk to other employees and then continued homeward, and was struck by a stone thrown by a blast, which according to custom, was fired about ten minutes after quitting time. The court, in holding that the accident arose out of the employment, said, that the keeping of the commissary by the employer was for the mutual benefit of the employer and employees, and that the employees were expected to stop and avail themselves of its use.21 Where a laundress was allowed to do her own washing on the premises of her employer in addition to board, lodging and money as compensation for her labor for her employer, and she was injured while doing her own washing, it was held that the accident did not arise out of and in the course of employment, and that it was immaterial that the accident occurred while she was doing what she was permitted to do by her contract of employment, for she was not engaged in performing any task of her employer.22 616, L. R. A. 1916A, 318; White v. Slattery Co., Mass.-, (1920), 127 N. E. 597, 6 W. C. L. J. 323; Papineau v. Indus. Acc. Comm., Cal. App. Mass. (1920), 187 Pac. 108, 5 W. C. L. . 492; Latter's case, 130 N. E. 637, (1921). - 19. Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491, 104 Atl. 167, 17 N. C. C. A. 945, 2 W. C. L. J. 791; In r3 Claim of Chambers, Op. Sol. Dep. C. & L. (1915), 291. 20. Procacins v. E. Horton & Sons, J. 31. Conn. 111 Atl. 594, 7 W. C. L. 21. Merlino v. Conn. Quarries Co., 93 Corn. 57 104 Atl. 396, 17 N. C. C. A. 945, 2 W. C. L. J. 781; In re Stephen J. Lloyd, 2nd A. R. U. S. C. C. 260; In re Max Stange, 2nd A. R. U. S. C. C. 261. 22. Daley v. Bates and Roberts, 224 N. Y. 126, 120 N. E. 118, 17 N. C. C. A. 946. "When Trotzke entered the inclosure of the Inland Steel Company undoubtedly he was in a place where his employer's business required him to be, and so long as he remained in that place he was exposed to certain inherent dangers to which he would not have been exposed apart from the business of his employer. By one of the inherent hazards of that place he was fatally injured, and the Industrial Board was justified in finding that the injury which resulted in his death arose out of the employment."'23 Deceased had been in the employ of a hotel company, in charge of the passenger and freight elevators and their operators. On the day of the accident she had performed the duties of starter and had worn the uniform of a starter. She had "punched out" on the time clock at 7:30 p. m., and a few minutes after 8 p. m., she entered one of the elevators and rode up and down for 15 minutes. At this time she was in street attire. She was talking with the operator, but the topic of conversation does not appear. While they were thus occupied, a passenger got off at the tenth floor, and deceased followed. The operator closed the door, and as the elevator started up deceased pushed open the door and attempted to enter. She tripped, and as the elevator was moving, fell into the shaft. Compensation was awarded for her death, the court, in affirming the award, saying: "Relators make much of the fact that deceased had 'punched out' on the time clock and that she was dressed for the street; hence, it is said, the finding is not sustained that she met death in the course of her employment from an accident arising out of it. This overlooks some persuasive testimony given by the assistant manager of the employer, to the effect that deceased had no stated hours of work, but was practically on duty all the time, as he put it, '24 hours in the day;' that she used her own discretion as to the time within which she was to do that which was expected of her, that the wearing of the uniform. was not obligatory for her, and that she was not required to punch the time clock, for her wages were not paid upon its record. The inference is near at hand that she was at the moment of the ac 23. Great Lakes Dredge & Dock Co., v. Trotzke, Ind. App.-, 121 N. E. 675, 18 N. C. C. A. 1032. cident engaged in her work, endeavoring to ascertain whether the doors of the elevator she was riding on locked properly. It seems their defective condition in this respect was the direct cause of her death.''24 An employee was injured when he was leaving the premises, upon being informed that his services were not required. It appeared that upon the particular morning of the accident the employee was late but it was claimed that he was refused work because he was not in a sober condition. The employer sought to escape liability on the grounds that the employee was not a regular employee, but was there asking for work, and therefore he was not injured in the course of his employment. It was found that he had been employed for 8 months previous to the day of the accident, and that there was not a separate employment from day to day. He was therefore a regular employee and was there in the performance of his duty as such, and was entitled to benefit of the act.25 An employee on a boat reported for duty at 5 p. m. and was informed that the boat would not sail until 11 p. m. He then went ashore, and when returning at 10 p. m. he sustained injuries while passing through his employer's yard. The court held that if the employee left the boat without permission, then the accident did not arise out of the employment. The court said: "If Carter left the boat by permission, and while returning to it and his work he was injured upon his master's premises, and while he was proceeding over a not unreasonable route, and while he was at a place where he had a right to be, and within the period of his employment, which began at 5 o'clock, he was injured in the course of his employment, and his employment was the proximate cause of his injury. "'26 A trackman was engaged to work for a railroad company. His employment was to begin a few days later. He was given a pass over the company's line to a bunk car furnished by the company. 24. State ex rel. Radisson Hotel v. District Court Hennepin County, (Minn.), 172 N. W. 897. 25. Kiernan v. Priestedt Underpinning Co., 171 App. Div. 539, 157 N. Y. Supp. 900, 13 N. C. C. A. 497. 26. Carter v. Rowe, 92 Conn. 82, 101 Atl. 491, 15 N. C. C. A. 258. He was struck by one of the company's cars and killed while waiting to get into the bunk car after he had arrived on the grounds where the car was located. It was held that the accident did not arise out of and in the course of the employment, the court saying, that he was not at the time of the accident engaged in performing any act in the line of his employment, since his labors under the agreement were not to begin until some time later.27 Where a hotel chef had been dismissed from employment but failed to leave, and about an hour after he was dismissed he cut his hand while preparing meals, it was held that the relationship of employer and employee had been terminated prior to the accident, therefore the accident did not arise out of and in the course of the employment.28 Where a laborer was injured while passing into a building under construction, to apply for work, in response to information that men were needed, it was held that he was not an employee.29 An employee, on his way to the time keeper's office to check out in the evening, had to wade through impure flood water which overflowed defendant's car yards. An old sore became infected and necessitated amputation. The evidence tended to show that there was no other means of getting from the place where claimant was employed. Affirming judgment in favor of the employee the court said: "Irrespective of any question of negligence, the standing of the flood water on the ground which was a part of the defendant's factory became for the time being one of the conditions under which the business was carried on. It was not a condi tion peculiar to the kind of business done, but it was one which gave rise to a special risk incurred by the workmen there engaged. We think the injury (assuming the facts to be as claimed by the plaintiff) is to be regarded as one arising out of the employment. ''80 27. Bloomington, Decatur & Champaign R. Co. v. Industrial Bd. et al., 276 Ill. 239, 114 N. E. 517, 13 N. C. C. A. 490. 28. Greenberg v. Atwood, 38 N. J. L. J. 54, 13, N. C. C. A. 495. 29. Dickerson v. Bornstein, 137 S. W. 773, 144 Ky. 19. 30. Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, 16 N. C. C. A. 896, 1 W. C. L. J. 770. W. C.-35 |