from the sportive act of a fellow employee, and was not incidental to the employment.2 22 An employee fainted after a dispute with her employer, and fellow employees hrought a glass of ammonia and a glass of water. By mistake the ammonia was thrown in her face, burning her seriously. The court said: "Clearly the injuries so received by her were accidental and arose in the course of her employment, but they did not arise out of such employment. If she had fainted because of fumes present in the work room and so falling had injured herself, a different question would have been presented; but the claimant fainted because of her physical condition, and even if her faintness might have been said to have resulted from her quarrel with her boss with regard to her work, the fainting was in no proper sense connected with the accident. The accident was caused by a co-employee mistaking the two glasses containing ammonia and water, not because the ammonia was exposed and an error arose as to its nature or use. The employee who obtained it knew precisely what it was. The employer had not furnished the ammonia as medicine for his employees nor had he authorized in any way its use by them as a medicine. A fainting such as is shown in this case and help such as was given is not a natural incident to the business. It has no more connection with it than if a physician had been called in and having been handed glasses of ammonia and water had made the same mistake. 1723 An employee threw a missile at a fellow employee without any intention to injure him, but it struck him in the eye destroying the vision of one eye. The practise of boys throwing these missiles during working hours was known or could have been known to the employer by the exercise of ordinary diligence. The injured employee never participated in this sport. Affirming an award in favor of claimant, the court said: "The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act re 22. Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060. Saenger v. Locke, 220 N. Y. 556, 116 N. E. 367. 23. sulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. *Here we conceive the situation to be different. Filas was exposed by his employment to the risks of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile-throwing proclivities of some of Filas's fellow workers and was a risk of the work as it was conducted. ''24 Where a taxicab chauffeur was injured while scuffling with a fellow employee while he was awaiting a call, the court held that he was not engaged in any act incident to his employment, and therefore his injury did not arise out of the employment.25 Where an employee, while running to punch the time clock when the noon whistle blew, collided with a fellow employee, breaking several ribs, one of which punctured his lung causing death, the court said: "At the time of the accident, Raynor was in the performance of a duty imposed upon him by his employer. The performance of this duty, if not the proximate cause, was a concurring cause of the injury.''26 § 360. Using Elevator Contrary to Instructions.-An employee was injured while bringing some goods from another floor at the direction of his foreman. There was a notice in the elevator forbidding anyone except the regular elevator operator to use the elevator. The evidence tended to show that it had been customary for other employees to use the elevator when the operator was not at his post. In the present case the operator was absent, and in an attempt to use the elevator the foot of the employee 24. State ex rel. Johnson Sash & Door Co. v. District Court of Hennipen Co., 140 Minn. 75, 167 N. W. 283, 16 N. C. C. A. 921, 2 W. C. L. J. 95, 25. Dunbar v. Horace F. Wood Transfer Co., Indiana Ind. Bd., (1916), 12 N. C. C. A. 250. 26. Raynor v. Sligh Furniture Co., 180 Mich. 168, 116 N. W. 665, 4 N. 'C. C. A. 851, L. R. A. 1916A 22, Ann. Cas. 1916A 386. Note: For case on injuries suffered as the result of an act of a fellow employee see titles "Sportive Acts"" § 285 ante, "Willful Misconduct," § 283 and 284 ante. ! was crushed. It was held that under the circumstances the accident arose out of the employment.27 An employee was in the habit of using an elevator in the adjoining portion of a building, which he was not supposed to use in bringing materials to the office. While there was evidence tending to show that the use of the elevator was contrary to orders, there was also evidence to the effect that the employer knew of the practise and never considered it of a nature sufficiently serious to merit a rebuke. The court affirmed a finding of the commission to the effect that the employer acquiesced in the custom, and even though the "boy, who was 16 years of age and had never worked out before, may have been somewhat at fault, does not deprive the claimant of the right to compensation. N. Y. Central R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. The presumption is that the case comes within the Workmen's Compensation Law, Sec. 21.28 Where a night watchman was found dying at the bottom of the shaft of an elevator which he was forbidden to use, the court held that the evidence was insufficient to justify a conclusion that deceased was at the elevator shaft in the performance of his duties.29 The regular operator of an elevator was absent, and the applicant secured an engine tender to operate the lift in order to enable him to take coal to the upper floors, and while ascending his heel became caught and was seriously injured. It was held that applicant was doing what he was told to do, and in getting another employee to operate the lift and not touching it himself sufficiently complied with the instructions forbidding him to use the lift, and therefore his injury arose out of the employment.30 27. Kreutz v. R. Neuman Hardware Co., 37 N. J. L. J. 58. 12 N. C. C. A. 486. 28. Smith v. H. J. Bartle Mfg. Corporation (1919), 189 App. Div. 426, 178 N. Y. S. 589, 5 W. C. L. J. 306. 29. Moyer v. Packard Motor Car Co., (1919), 171 N. W. 403, 205 Mich. 503, 3 W. C. L. J. 756, 18 N. C. C. A. 1028. 30. Marshall v. Joseph Rodgers & Sons Ltd., (1918), W. C. & Ins. Rep. 39, 17 N. C. C. A. 381. Where an employee, engaged in operating an engine in the basement, goes to an upper floor and volunteers to take fellow employees to a floor above in an elevator, and is killed in so doing, his conduct took him outside the scope of his employment, and an injury so sustained did not arise out of the employment.3 31 § 361. Using Machinery Other than that Employed to Use.-A boy employed as a general roustabout in a factory was subject to orders from different foremen. On the day of the accident the boy was set to work making hoops. While so engaged another foreman requested him to make a box, and the boy undertook to operate a circular saw in preparing boards for the box, and while thus engaged his hand came in contact with the saw sustaining injuries. "Plaintiff contends that defendant was not acting within the scope of his employment in undertaking to make the boxes; that he had no right to undertake the operation of the saw; and that had he followed the instructions of his foreman he would then have been engaged in unloading lumber from the car. Defendant testifies that on one or two other occasions he had used the saw under instructions from Altmann, and his testimony in this respect is not disputed. The record shows that he was subject to the orders of different foremen. These several foremen may have differed in rank, but defendant had during his employment taken orders from each of them. He was only a boy of immature years. As shown by the testimony quoted of the foreman who employed him, it was his duty to 'do anything in the line of common labor around the shop.' This being true, he cannot be held to the strict accountability of his acts. Accustomed as he was to take orders first from one foreman and then from another, when the foreman of the oleomargarine department signified his desire that defendant make a box, he might well assume that it was his duty to obey, and that that order countermanded the order given by the other foreman earlier in the day to assist in unloading the car of lumber. It is clear that he was engaged about the premises where his services required his presence, during proper hours of service, and that his labor was calculated to promote the master's business. 31. Waters v. Wm. Taylor Co., 218 N. Y. 248, 112 N. E. 727. He had theretofore used the saw under the eye, if not under the direction of his immediate foreman, Altman, and at the time the accident occurred he was carrying out the order, implied, if not directly expressed, of one of plaintiff's foremen, who stood watch. ing him as he worked.''32 Where a night watchman was injured while using a circular saw to obtain a board to barricade a door, the court, in annulling an award, said: "Assuming that it was within the scope of the applicant's employment to see that the doors of the premises were properly secured by locking, nevertheless we are of the opinion. that his resort to the use of a circular saw for the purpose of making a board that would answer the purpose of extending across the door was entirely beyond the scope of his employment, and not in the contemplation of his employers, and was not a resort to reasonable means for the purpose of securing the end intended by him at that time.''33 Where an employer knows of and acquiesces in a practise among employees of exchanging work, an injury sustained, while exchanging work with a fellow employee, arises out of the employment.34 § 362. Volunteers.-An associate member of a fire departmen: was killed while assisting the chief engineer of the fire department in extinguishing a fire. An associate member was under no obligation to respond to fire alarms. The city recognized the fact that Cole was performing the duties of an active member and paid the sum required under the general municipal law. The fire had occurred on the premises of Cole's employer and his dependents. sought compensation from the employer manufacturing company for his death. The court, in reversing an award, said: "The accident to Cole did not arise out of or in the course of his employment, nor was it incidental thereto. The accident occurred 32. Morris & Co. v. Cushing, (1919), 172 N. W. 631, 103 Neb. 481, 4 W. C. L. J. 268, 18 N. C. C. A. 1029. 33. Brusster v. Indus. Acc. Comm., 35 Cal. App. 81, 169 Pac. 258, 15 N. C. C. A. 278. 34. Sunnyside Coal Co. v. Indus. Comm., 196, 5 W. C. L. J. 697. Ill., (1920), 126 N. E. Note: See "Added Risks to Peril," "Emergency," "Volunteers.'' |