Claim of Miller v. Taylor

Lyon, J.: The single question involved upon this appeal is whether the accidental injury causing the death of deceased arose out of his employment. The American Express Company was engaged in a general express business. The deceased was the driver of one of its motor trucks at Buffalo, X. T. Prior to that he was the driver of one of its wagons. On December 2, 1915, while crossing a street on his way from his truck to deliver an express package [866] he was struck by an automobile and received injuries which caused his death two days later. Ooncededly the injuries were received by the deceased in the course of his employment. The defendant contends, however, that the injuries did not arise out of the employment and cites in his brief as justifying such defense the cases of Matter of Newman v. Newman (218 N. Y. 325), Matter of Moore v. Lehigh Valley R. R. Co. (169 App. Div. 177; affd., 217 N. Y. 627), and Matter of Costello v. Taylor (Id. 179). In the Newman case the deceased had put up his horse and wagon several hours before receiving the injury and was making the delivery on foot entirely independently of the use of his horse and wagon and not as an incident of the operation on the street of a vehicle as in the case at bar, and, hence, was not engaged in one of the hazardous employments specified in the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). The Moore case is cited simply as authority for the undisputed proposition that the injuries must have arisen both out of and in the course of the employment. The Costello case is sought to be distinguished from the case at bar and to be considered an authority for reversal as holding that it is the business of the care and operation of the horse and wagon which is considered hazardous and not the employment of a deliveryman, especially when he is delivering on foot. While the question at issue here was not involved in that case, that decision expressly holds that the business of operating vehicles was intended to be covered by the act. The act of deceased in leaving his vehicle and delivering the express package on foot was a necessary incident of the operation of the vehicle as an express delivery car and so doing was within the scope of his employment. In the recent case of Matter of Dale v. Saunders Bros. (218 N. Y. 59) Judge Pound, in citing the Costello case, said: “ The duties of a teamster properly include the loading of his wagon, and are not limited to the driving of the team.” I think the award was clearly right and should be affirmed. Award unanimously affirmed.