22, May 8, and May 20, 1918, at none of which was there an appearance, except at the meeting at which an allowance was made to claimant's attorney for legal service. The award appealed from was made May 20th, in which this statement appears:

"At the hearing held on April 15, 1918, it was stipulated on behalf of the employer and insurance carrier that the only question raised in this case was the question of the dependency of the claimants."

It was found as a conclusion of fact:

"(4) The injuries which resulted in the death of Paul Urban, Jr., were accidental injuries, and arose out of and in the course of his employment."

It was plainly the intention of the attorney for the employer and insurance carrier not to waive the question as to the accident not having arisen out of and in the course of the employment. It was understood that the statement of claimant's attorney, made at the meeting of March 28th, was a stipulation of the facts as to the manner in which the decedent's death was caused, and not a stipulation that the question was not in the case. The proceedings of April 8th make this plan. No further proof was offered upon the subject, and it is evident that the fact of the manner of decedent's death had passed from the mind of the commissioner at the time the award was made, or that he reached the conclusion that the accident arose out of and in the course of the young man's employment. From the decision of the commission we judge the former to be the case. It is a material point of law in the case, and we shall therefore discuss it.

The decedent had plainly finished his employment, which was assistant order clerk in a wholesale hardware business, laying out goods on order. He had washed up, put on his coat and hat, and gone to the door to go out. It was 5:35. His quitting time was 5:30. Remembering that the companions with whom he usually went home were still there, he returned; not finding them in the room upstairs, he thrust his head in the open space and called to them. The descending elevator crushed his head. At the time he met his death he was not engaged in the business of his employment. He had ceased that. His act of turning back, looking about the room for his companions, and putting his head into the elevator shaft, was his own voluntary act. He had deviated from the direct and ordinary route of passage for purposes of his own.

The award must be reversed, and the case dismissed. All concur, except John M. Kellogg, P. J., who dissents.

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

PIERSON

V.

INTERBOROUGH RAPID TRANSIT CO.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-CONSTRUCTION-INJURIES IN COURSE OF EMPLOY

MENT.

Amendment of Workmen's Compensation Act 1914, art. 1, § 3, subd. 4, defining "employee" as one in hazardous occupation, by Laws 1916, art.

* Decision rendered, November 8, 1918. 172 N. Y. Supp. 492.

622. did not bring workman injured out of the course of his employment within the act, in view of section 7, defining an injury as one arising out of and in the course of the employment.

(For other cases, see Master and Servant, Dec. Dig. § 375[1].) . COMPENSATION

2. MASTER AND SERVANT-WORKMEN'S

ACT-INJURY
GUARD.

ARISING OUT OF EMPLOYMENT — “L”

An elevated railway guard having two hours off, who stayed on train to ride to office for pay and thence to a dentist, and was injured in a collision, was not within the Workmen's Compensation Act, and could recover in a civil action.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].)
(For other definitions, see Words and Phrases, L.)

Appeal from Trial Term, New York County.

Action by Peter J. Pierson against the Interborough Rapid Transit Company. Judgment on verdict for plaintiff, and order denying motion for new trial (102 Misc. Rep. 130, 168 N. Y. Supp. 425), and defendant appeals. Affirmed.

JJ.

Argued before Clarke, P. J., and Dowling, Smith, Page, and Shearn,

James L. Quackenbush, of New York City (Frederick J. Moses, of New York City, of counsel), for appellant.

Frank L. Tyson, of New York City (John C. Robinson, of New York City, of counsel), for respondent.

SHEARN, J. Plaintiff was employed by defendant as a guard on its elevated railway. He had been on duty for several hours, finished his trip at the terminal, and was off duty on what is known as a "swing" of about two hours. His time was at his disposal for that period. He was in the company's uniform, and instead of leaving the train and the premises of the defendant he remained upon the same train when it started on its southerly trip. His purpose in taking the trip was to go to his dentist's on Fifty-Ninth street, but it was his intention to stop off the train at 129th street, where the employees receive their pay, and, if there were not too many in line, to collect his pay. After the train had left the terminal, and before reaching 129th street, it came into collision with another train on the same track, and the plaintiff sustained the injuries for which the damages have been awarded.

The appellant's claim is that the plaintiff's remedy for this accident is provided by the Workmen's Compensation Law (Consol. Laws, c. 67). Its argument is based mainly upon the amendment of the law made by chapter 622 of the Laws of 1916, which went into effect before this accident. It is claimed that this injury comes within the provisions of the act by reason of change in the definition of "employee." Under the act of 1914 "employees" was defined as follows:

Article 1. § 3, subd. 4: "Employee' means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer, and shall not include farm laborers or domestic servants."

While the act contained this definition, it was held in De Voe v. N. Y. State Railways, 218 N. Y. 318, 113 N. E. 256, L. R. A. 1917A, 250, that the employee was entitled to compensation only if he were engaged in a hazardous employment at the time of the accident. De Voe, it

will be recalled, was a motorman of a street railway, who had finished his work for the day and was hurrying to catch a street car to go to an adjoining town to have his watch tested as required by the rules of the company, and was struck by an automobile and killed. Following the decision of that case in the Appellate Division (169 App. Div. 472, 155 N. Y. Supp. 12) the act was amended by chapter 622 of the Laws of 1916. The amendment gave this definition of "employee":

"Employee' means a person engaged in one of the occupations enumerated in section 2 or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer, and shall not include farm laborers or domestic servants."

[1] It will be observed that, instead of defining "employee" as one engaged in a hazardous employment in the service of an employer, it is now one engaged in the enumerated occupations, who "is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment." The claim is that this does away with the settled and recognized limitation that the injury must arise out of and in the course of employment. The argument is not sonud. The amendment does broaden the definition, so as to make it clear that an employee who is injured while employed by one whose principal business is to carry on a hazardous employment is entitled to compensation, irrespective of whether what he is doing at the time is hazardous or not. The argument takes no account of section 3, subd. 7, which reads now as it did in 1914, namely:

"Injury' and 'personal injury' mean only accidental injuries arising out of and in the course of employment."

While, therefore, the definition of an employee has been changed, there has been no change in the law that limits recovery to injuries that come within section 3, subd. 7.

There is, however, more to be said in favor of appellant's contention. In the first place, the concluding sentence in the opinion in the De Voe Case reads:

"He was not injured while on duty nor in his working hours nor on his way to or from his duty within the precincts of the company."

That does not hold, but it seems to intimate, that one on his way to or from his duty within the precincts of the company would be entitled to compensation, and there are cases in the Appellate Division that so hold. For example, in the case of a man employed in the subway who reported for work, but was considered too drunk to work, and was sent away, and was injured while walking out of the subway, it was held that this injury arose out of and in the course of his employment, and compensation was allowed. Kiernan v. Friestedt Underpinning Co., 171 App. Div. 539, 157 N. Y. Supp. 900. Furthermore, it seems right that a motorman or guard, who has been taken to the end of the line and is compelled to lay off for two hours or so before the next run, should be protected by the act in the case of an injury sustained while in the precincts of the company awaiting his next tour of duty. There would, of course, be no question but that a motorman who had thus gone to the end of his line, and who was provided a waiting place a few stations removed, and who rode on the train to that waiting place, and was injured on the way, would be said to have sustained an injury growing out of and in the course of his employment.

In view of the numerous decisions of the Appellate Division tending in this direction (Countryman v. Neuman, 174 App. Div. 900, 159 N. Y. Supp. 1108; Rzepczynski v. Manhattan Brass Co., 179 App. Div. 952, 165 N. Y. Supp. 1110; McCabe v. Brooklyn Heights R. R., 177 App. Div. 107,

162 N. Y. Supp. 741), and in view of the intimation at the conclusion of the opinion in the De Voe Case, it might be persuasively argued that this case was within the act, if it were not for the recent explicit opinion of the Court of Appeals in Daly v. Bates, 224 N. Y. 126, 120 N. E. 118, in which Judge Hogan quotes the opinion of the Court of Appeals in Heitz v. Rubbert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344, as laying down the law applicable to these cases. In the Heitz Case the accident happened while the act of 1914 was in effect, but the amendment of 1916 was in effect at the time of the accident in the Daly Case. However, as above stated, I do not think that the amendment makes any difference. Judge Hogan says:

"The statute does not provide an insurance against every accident happening to the workman while he is engaged in the employment. The words arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both 'out of' and 'in the course of employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence, and directly connected with the work."

[2] In view of this opinion, I do not see how it is possible to hold that this accident was within the purview of the act; for this workman was off duty, was on his way to his dentist, and did not have to report back for duty for two hours. The injury was therefore not received while he was doing the duty he was employed to perform, nor was it a natural incident of the work.

[3, 4] It is also claimed that there is no proof of negligence; but as the plaintiff was a passenger, and the accident grew out of a collision between the train he was on and another train, and the circumstances of the accident are fairly shown, the rule of res ipsa loquitur applies. No proof was put in by the defendant to overcome the presumption of negligence.

It is claimed that the verdict is excessive; but a consideration of the serious nature of the injuries, the terrible suffering that the man endured by reason of his burns, the long and painful treatment, the fact that he still has open sores on his body, that these keep him awake two or three nights a week, and that he will never get over them, make the verdict not unreasonable, in spite of the fact that his earning capacity has been but little impaired.

The judgment and order should be affirmed, with costs. Order filed. All concur.

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

SMITH
ข.

F. & B. CONST. CO. ET AL.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT - LOSS OF USE OF EYE-PROPRIETY OF AWARD. Servant who, with powerful glasses, had vision of one-third with injured right eye, if he closed other eye, so that he could have only one eye, * Decision rendered, November 18, 1918. 172 N. Y. Supp. 581.

and, if he used injured eye, had but one-third vision, was properly awarded compensation for permanent loss of use of right eye, considered as equivalent of loss of eye.

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

Appeal from State Industrial Commission.

Claim by William Smith for compensation under the Workmen's Compensation Law, opposed by the F. B. Construction Company, the employer, and the London Guarantee & Accident Company, insurance carrier. From an award by the State Industrial Commission, affirming its prior award, the employer and insurance carrier appeal. Affirmed.

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

William Butler, of New York City, for appellants.

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

A. H. Schwarz, of New York City, for claimant.

JOHN M. KELLOGG, P. J. By the award appealed from claimant has been compensated for the "permanent loss of use of the right eye considered as the equivalent of the loss of such eye."

With the use of powerful glasses he has a vision of about one-third with that eye, but in order to obtain it he must close the other eye. In any event he can only have one eye, and if he uses the injured eye he has the vision of but one-third of an eye.

The case differs from Frings v. Pierce-Arrow Motor Co., 182 App. Div. 445, 169 N. Y. Supp. 309, where by use of glasses claimant had the normal vision of the injured eye. There, without glasses, he had vision of but one eye, and with the use of glasses had the normal vision of the other eye only. In any event, he had the full vision of one eye, and could use either eye at pleasure. But here, to get a third vision from the right eye, he must forego entirely the use of the left eye. I think the rule in the Frings Case should not be extended beyond the facts there found.

I favor an affirmance of the award. All concur, except Lyon, J., who dissents.