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Etherton v. Johnstown Knitting Mills Co.

Appellate Division of the Supreme Court of New York, Third Department
Nov 13, 1918
184 App. Div. 820 (N.Y. App. Div. 1918)

Summary

In Etherton v. Johnstown Knitting Mills Co. (184 App. Div. 820) an employee went to the basement of the plant of her employer to set a bottle of tea on the boiler to heat it for her lunch, and was injured by a fall on the basement staircase.

Summary of this case from Ross v. Howieson

Opinion

November 13, 1918.

Amos H. Stephens [ E.C. Sherwood and William B. Davis of counsel], for the appellants.

Merton E. Lewis, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge, counsel to the State Industrial Commission, for the respondents.


Claimant was injured during working hours at the plant of her employer. She came to the plant at about seven A.M., went to the basement, set a bottle of tea on the boiler, and while on her way back to the floor above slipped and fell at the foot of a staircase. If claimant, during working hours, had suspended work to go to a cloakroom to change her clothes, to a washroom to wash up or use the toilet, and while in such room had been injured, she could, under the authorities, have had an award. ( Chludzinski v. Standard Oil Co., 176 App. Div. 87; Sexton v. Public Service Commission, 180 id. 111; De Filippis v. Falkenberg, 170 id. 153.) In order to be acting in the course of her employment, therefore, it was not necessary that she should have been actually engaged in the work thereof. It was sufficient if she was performing some act upon the premises of her employer which, though directly beneficial to herself, was an ordinary incident of a day of employment. This claimant was performing such an act in placing her bottle of tea upon the boiler to keep it hot for a midday meal. Of course, if she had been forbidden to enter the boiler room she was acting in violation of her duty, and, therefore, not in the course of her employment. It is true that her employer had long previously promulgated a rule prohibiting the use of the boiler room and the boiler by its employees. However, it was the common practice of employees at the time of the accident to make use of the room as did the claimant. The acquiescence of the employer in this practice was sufficient to abrogate the rule. Also, the injuries sustained by claimant arose through an accident arising out of her employment. Injuries due to slipping or tripping on stairs or floors have been held to be due to accidents arising out of the employment. ( Leslie v. O'Connor Richman, Inc., 173 App. Div. 988, affg. 5 State Dept. Rep. 383; Naro v. Rueckheim Bros. Eckstein, 175 App. Div. 958, affg. 7 State Dept. Rep. 484.) The case of Daly v. Bates Roberts ( 224 N.Y. 126) in no wise militates against a recovery here, for in that case the claimant, entirely beyond the limits of her working day, was performing labor for herself, and at the time was in no sense an employee. So of Manor v. Pennington ( 180 App. Div. 130). There the employee, during the noon hour, was injured by an explosion of a boiler in a basement, while eating his dinner, but in that accident the basement was not in the possession or occupation of his employer. The Workmen's Compensation Law makes a distinction between injuries received at the plant or upon the premises of the employer, and those received elsewhere. The authorities cited amply justify an award.

The award should be affirmed.

All concurred, except COCHRANE, J., dissenting.

Award affirmed.


Summaries of

Etherton v. Johnstown Knitting Mills Co.

Appellate Division of the Supreme Court of New York, Third Department
Nov 13, 1918
184 App. Div. 820 (N.Y. App. Div. 1918)

In Etherton v. Johnstown Knitting Mills Co. (184 App. Div. 820) an employee went to the basement of the plant of her employer to set a bottle of tea on the boiler to heat it for her lunch, and was injured by a fall on the basement staircase.

Summary of this case from Ross v. Howieson
Case details for

Etherton v. Johnstown Knitting Mills Co.

Case Details

Full title:Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 13, 1918

Citations

184 App. Div. 820 (N.Y. App. Div. 1918)
172 N.Y.S. 724

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