Opinion
July 6, 1922.
Chester McNeil, for the appellant.
Charles D. Newton, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
The employer is a corporation manufacturing paper boxes in the city of Rochester. Its business is located and carried on in a five-story building which it owned. With one other tenant it occupied the whole building. It maintained an elevator for the use of the occupants of said building, which was designated as a combination passenger and freight elevator. On the 18th day of October, 1919, claimant's intestate, a daughter, fifteen years of age, worked for this company. The place of her work in said building was on the fourth floor. The hours were from seven-thirty A.M. to five P.M. The way provided for the help to reach the upper floor in said building was by a stairway. The evidence discloses that the girl employees of the building, at times, used the elevator to get up and down, to and from their respective positions in the establishment. On the day in question and about seven-ten A.M. the man who ran the elevator had stopped it at the second floor, locked it and had gone away from it. Claimant's intestate checked in at the first floor at about that time and went up the stairs to the second floor, unlocked the elevator and started it upwards, was caught between it and the floor and killed. Claimant as a dependent was given an award. Appellants object to the award upon the ground that the accident did not arise out of and in the course of her employment, and that there was no dependency proven on part of the claimant. The first objection is good. While at different times girls, among them this girl, had used the elevator and had been instructed by other girls in this employment how to operate it, it affirmatively appears that this girl had been told to keep away from the elevator. She was not engaged in any work for the benefit of her employer, but on the contrary was endeavoring to favor herself by avoiding the extra effort she would have to make going up the two flights of stairs. Under such circumstances the courts have held that a claimant, or a claimant's intestate, was not acting in the course of the employment, and was not engaged in the work for which she was employed. ( Rendino v. Continental Can Co., 186 App. Div. 924; revd., 226 N.Y. 565.) In the above-cited case a boy seventeen years old, after finishing his day's work, attempted to operate a stamping machine in violation of the orders of his employer and was injured; held, he could not recover compensation. In Matter of Di Salvio v. Menihan Co. ( 225 N.Y. 123) the claimant left his post and went across the room in which he was working to say good bye to a fellow-employee who was going away to enter the army. He was injured while away from his station in the employment, but in the same room. It was held that the accident did not arise out of and in the course of his employment. Subdivision 7 of section 3 of the Workmen's Compensation Law is construed in Matter of Gifford v. Patterson, Inc. ( 222 N.Y. 4) contrary to the contention of respondents.
The award should be reversed and claim dismissed, with costs against the State Industrial Board.
All concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.