108 Minn. 485, 122 N. W. 456, 23 L. R. A. (N. S.) 954. But no case has been cited or found where an employee going for such a purpose to his home or other place selected by him a substantial distance away from the "ambit" of his employment and from the employer's premises has been regarded as so engaged in the latter's business that an accident then happening to him would be held to be one arising out of and in the course of his employment. On the contrary, it has been uniformly held that it did not so arise. Boyd on Workmen's Compensation. § 481; Ruegg on Employers' Liability & Workmen's Compens. 377; Brice v. Lloyd, 2 B. W. C. C. 26; Hoskins v. Lancaster, 3 W. C. C. 476, 478; 479; Hills v. Blair, 182 Mich. 20,, 148 N. W. 243. Such an act of the employee lies outside of his employment within the fair applicant of the principles which were laid down in Matter of De Voe v. Ñ. Y. S. Rys., 218 N. Y. 318, 113 N. E. 256, L, R. A. 1917A, 250, and does not come within the rule applied in Matter of Littler v. Fuller Co., 223 N. Y. 369, 119 N. E. 554, where the transportation in the course of which the injury arose was by the contract of hiring expressly "brought within the scope of the employment." This view is also in accordance with the decisions in negligence cases. Wilson v. C. & O. Ry. Co., 130 Ky. 182, 113 S. W. 101; Moronen v. McDonnell, 177 Mich. 691, 143 N. W. 8.

But while not seeming to dispute this general proposition the Attorney General invokes another rule for the purpose of sustaining the present award. This rule is the one that employment for the purpose of a workmen's compensation act, such as ours, does not commence or end at the instant an employee puts his hand to or takes it from his actual work, but includes a reasonable time and space through which he is approaching or leaving his work, and it is argued that under this principle decedent's relation of employee as he departed to his dinner continued down to the point of his accident, and thus gave to the latter the necessary character to make it a basis for compensation.. Guastelo v. Mich. Cent. Ry. Co., 194 Mich. 382, 160 N. W. 484, L. R. A. 1917D, 69; Hoskins v. Lancaster, supra; Gane v. Norton Hill Colliery Co., 2 W. C. C. 42, 47.

[3] We do not think that the findings sustain this argument. As already stated, they simply show that at the time the deceased fell he was still "within the limits of the railroad yards in which yard he performed certain of his duties," there being nothing to indicate how far he had proceeded from where he stopped work. The fact that an employee is on the "premises" of his employer when those premises consist of a railroad right of way or yards does not have the significance which it naturally would have in the case of an ordinary manufacturing plant. We know that such rights of way extend indfinitely, and that such yards are of no standard size, but run from small areas to large tracts extending over many miles. Therefore, to say that the deceased was still within the yards where he performed some of his duties in no manner indicates that he was still within that reasonable distance of the point of cessation of his actual work where he would be protected. Nor do we think that this distance and protection would be indefinitely and as matter of course extended simply because the employer permitted him for his own purposes to travel on the railroad right of way instead of taking the usual and safe course by the highway.

Even farther than this, if we should assume that we might look to the evidence in the attempt to imply a finding that would uphold the award, the attempt would in my opinion fail. This evidence would shov that the deceased on the occasion in question traveled over 3,000 feet, considerably more than half a mile, from the yard where he stopped work before reaching the trestle where he fell; whereas, it was a much shorter distance to the highway which he ordinarily used for this trip, and although the route which he did take before reaching the trestle crossed two streets which would have led him home. Under such circum

stances, we do not think it would have been permissible for the Industrial Commission to find that the deceased at the time of his accident was still within that reasonable distance which the law gave to him for departure from his work.

As has been suggested, it does not seem that the mere fact that the employer suffered the employee for reasons of his own to travel home by the right of way, instead of by the usual and safe highway, should operate to extend the distance through which the employee might travel on an errand of his own before losing his character of employee, and if the deceased while traveling upon the highway and when distant half a mile from his place of work had been injured we suppose it would hardly be suggested that the accident arose in the course of his employment. In the cases which have been called to our attention where the claim of an employee has been sustained under the rule which we have discussed, the accident happened in close proximity to the place of work and while the employee was on the premises of the employer and departing from or approaching his work by a way which had been furnished or adopted by the employer as a usual and customary one. Gane v. Norton Hill Colliery Co., supra; Hoskins v. Lancaster, supra; McKee v. Great North. Ry., Co., 1 W. C. C. 165. See, also, Olsen v. Andrews, 168 Mass. 261, 263, 47 N. E. 90.

On the other hand, the case which of all others is most analogous in its facts to the present one is opposed to an award. Hills v. Blair, 182 Mich. 20, 148 N. W. 243. In that case the deceased workman of the defendant started from a hand car house where the crew stopped at noon to go to his home for dinner. He traveled on the railroad right of way, although a short distance from the starting point a highway crossed the track and thence ram parallel with it. At a distance of 950 feet from the starting point, he was accidently killed by collision with a train. Under a statute like our own on this point, the Industrial Accident Board held that the deceased was still in the employment of the defendant under the rule which has been stated, and made an award. The Supreme Court, however, reversed this action, holding in effect that the deceased could not be regarded as within the rule and still in the employment of the defendant at the time the accident happened. See, also Caton v. Steel Co., 39 Scot. L. R. 762; McLaren v. Caledonian Ry. Co., 5 W. C. C. 492; Walters v. Staveley Coal etc., Co. 4 W. C. C. 303; Gilmour v. Dorman, Long & Co., 4 W. C. C. 279.

For these reasons we think the order of the Appellate Division and the award of the State Industrial Commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the commission.

Chase, Collin, Cuddeback, Hogan, McLaughlin, and Crane, JJ, concur. Order reversed, etc.

Where an employee, who was near-sighted and had only 50 per cent, vision, lost the use of an eye, it was not error to allow compensation for the loss of an eye, as against a claim that she had lost only 50 per cent. of vision.

(For other cases, see Master and Servant, Dec. Dig. § 385[114].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -LOSS OF USE OF EYE-EARNING CAPACITY.

Where an employee with defective vision lost the use of an eye, the wages received by the employee must be considered her wage-earning capacity with defective vision.

(For other cases, see Master and Servant, Dec. Dig. § 385[11].)

Appeal from State Industrial Commission.

Proceeding under Workmen's Compensation Act by Allie Hobertis, claimant, opposed by the Columbia Shirt Company, Incorporated, employer and the Zurich General Accident & Liability Insurance Company, Limited, insurer. From an award of the State Industrial Commission, the employer and insurer appeal. Affirmed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Alfred W. Andrews, of New York City, for appellants.

Merton E. Lewis, Átty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Robert W. Bonynge, of New York City, for State Industrial Commission.

Lyon, J. The claimant lost the use of an eye. She was nearsighted, having not to exceed 50 per cent. vision. The appellants claim she should only be allowed for the loss of one-half vision. The commission made an award for the permanent loss of the use of an eye. From such an award this appeal is taken.

[1] The statute does not provide that the loss of the use of an eye shall be compensated by an award based upon the amount of vision which existed previous to the accident, whether it be 50 per cent. or 80 per cent. of vision lost. It awards specific compensation for the loss of an eye. It is matter of common knowledge that very few persons have complete and perfect vision. The claimant was working with defective vision. So far as appears, her work was entirely satisfactory to her employer, at least so far as the wages she received.

*Decision rendered, January 8, 1919. 173 N. Y. Supp. 606.

[2] The wages received by her must be considered her wage-earning capacity with defective vision. She lost the use of her eye, such as she had, and is entitled to compensation therefor, based upon her earning capacity.

The award should be affirmed, with costs. All concur.

1. MASTER

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD Department.

AND

LAURINO

V.

DONOVAN ET AL.*

SERVANT-WORKME'S COMPENSATION -"ARISING OUT OF EMPLOYMENT."

Where cap, found by chauffeur in coal pile on dock 200 feet from garage, around which he was working, exploded in chauffeur's attempt to remove attached wire, injuring fellow chauffeur passing by in discharge of duties, fellow chauffeur's injury was result of accident "arising out of his employment."

(For other cases, see Master and Servant, Dec. Dig. § 373.) · (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Act by John Laurino for compensation for injury, opposed by John E. Donovan, employer, and 'the Travelers' Insurance Company, insurance carrier. From an award of the Industrial Commission for claimant, the employer and insurance carrier appeal. Affirmed.

See also 183 App, Div. 169, 170 N. Y. Supp 340.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrance, and Henry T. Kellogg, JJ.

Amos H. Stephens, of New York City (E. C. Sherwood and William B. Davis, both of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Robert Bonynge, of New York City, for State Industrial Commission.

LYON, J. This is an appeal from an award of the State Industrial Commission for the loss of an eye. On March 2, 1917, the claimant and one William Earl were employed as chauffeurs by John E. Donovan. They had been that afternoon directed by him to clean up the garage and cars. The premises of the employer consisted of a garage, dock, stable, blacksmith shop, and machine shop. Laurino and other employees of Donovan had been hauling coal to the dock that forenoon. There was * Decision rendered, January 8, 1919. 173 N. Y. S pp. 619

Vol. LIII-26.

a pile of coal on the dock, about 200 feet from the garage. Earl found an explosive cap with a copper wire attachment in the pile of coal. He brought it into the garage and was attempting to remove the wire from the cap, when it exploded and struck Laurino, who was passing in the performance of his work, in the right eye, destroying the sight. The commission awarded Laurino compensation for the loss of an eye, from which award this appeal has been taken.

Upon a former appeal the award was reversed, and the claim dismissed. 183 App. Div. 169, 170 N. Y. S. 340. Upon application the order was modified, and the claim remitted to the commission for a further hearing. The evidence then was that the cap was found somewhere not on the premises of the employer. The evidence now is that Earl found the cap in the employer's coal then on the dock. It was the duty of Earl to acquaint his employer with the fact that he had found the cap in the coal. His failure so to do might result in the cap being put into the furnace of the employer, which might bring about an explosion, severely damaging the employer's property, and endangering life. The appellant contends that the accident did not arise out of claimant's employment. It was, perhaps, careless for Earl to experiment with the cap; but it was neither a sportive nor a willful act. The claimant suffered injury from Earl's acts while claimant was about his employer's business. He was engaged in the discharge of his duties when the explosion occurred. He was injured through the carelessness and neglect of a fellow workman, which was an incidental risk of his employment. The award should be affirmed. All concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

MULLEN

ບ. LITTLE.*

1. MASTER AND SERVANT-INJURY TO EMPLOYEE-CONTRIBUTORY NEGLIGENCE.

Where ice was being unloaded from sleigh into farm icchouse by means of skid, farm laborer, who was guiding ice down skid, knowing that, when ice entered building, sleigh end of skid was lifted in air, was guilty of contributory negligence in placing foot within skid to release ice, wedged in doorway, where ice could have been released without so doing.

(For other cases, see Master and Servant, Dec. Dig. § 236[13].)

2. MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCEBURDEN OF PROOF.

Defendant master has burden of proving servant's contributory neg

igence.

(For other cases, see Master and Servant, Dec. Dig. § 265[14].) Decisionendered, January 8, 1919. 173 N. Y. Supp. 578.