Opinion
November 13, 1924.
William H. Foster, for the appellants.
Carl Sherman, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the State Industrial Board.
U.G. Welch, for the claimants, respondents.
The employee, Henry Coman, for whose death this claim was filed, was the manager of a milk station of the Model Dairy Company, the employer, at Greenway, N.Y. The station was located on land which adjoined the right of way of the New York Central Railroad Company on the south. A highway, leading north and south, crossed the right of way a short distance west of the milk station. From this highway a private road led across the station premises to the station building. Coman lodged and took his meals at a boarding house located on the highway mentioned, about one mile north of the railroad crossing. He was accustomed to travel back and forth between the boarding house and the milk station in an automobile to which he owned title. He was accustomed to park the automobile upon the station premises while he was at work thereupon. On the day of Coman's death the work at the plant was ended at about four-thirty in the afternoon. Coman remained in the station building talking with an employee until that employee departed at about five o'clock. Fifteen minutes later Coman with his automobile was crossing the railroad tracks going north upon the highway mentioned when the automobile was struck by a passing train and Coman received such injuries that he died. There was no proof that Coman at the time was driving his automobile in aid of his employer's business. On the contrary, the just inference would seem to be that Coman was journeying to his boarding house for the purpose, personal to himself, of obtaining his evening meal and his night's lodging. Much has been made of the fact that, according to the terms of his employment, Coman was required to visit with his automobile various dairy farms which supplied the milk station of his employer. It has been argued that Coman kept his automobile at the plant of his employer in order to be ready to make these visits. The case is barren of proof, however, that Coman had ever made the visits required with his own automobile or with that of any other person. It is barren of proof that upon the day in question he had entertained the purpose of visiting the dairy farms and in order to be in readiness therefor had parked his car upon his employer's premises. The conclusion cannot be escaped that Coman at the time of his death was not in the course of his employment
The award should be reversed and the claim dismissed, with costs against the Industrial Board.
All concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.