Murphy v. Ludlum Steel Co.

H. T. Kellogg, J.: This is a negligence action in which damages resulting from the death of the husband of the plaintiff are sought to be recovered. Deceased was killed by the falling of a wire which carried a current of electricity of high voltage. The wire was maintained by the defendant, and it is not seriously contended that in reference to its maintenance there was freedom from negligence. The chief contention is that the deceased at the time of the accident was the employee of the defendant, and that recovery must be sought under the Workmen’s Compensation Law. The deceased was employed by the defendant as a janitor [141] of an office building. The mills, offices and certain tenement houses of the defendant were all situate upon a tract of land of about seventy-five acres. One of the tenements was occupied by the deceased and his wife. It was separately fenced off, so that deceased possessed his own lawn, and his own private way to the public street. All the buildings constituting the plant were more than eight hundred feet away. In order to get to the office building of which he was janitor, deceased would pass through his own yard to the street, down the street, and then upon the premises of the defendant. "Deceased paid the defendant a rental of ten dollars a month for his house. At the time of the accident he was in his own front yard on his way to the office building, and the wire which touched and killed him fell upon his premises. The business of the employer and the occupation of the deceased were hazardous. The deceased, however, was not engaged in his hazardous occupation “ upon the premises or at the plant ” of his employer within the meaning of section 3, subdivision 4, of the Workmen’s Compensation Law. It has been held that workmen on their way to and from the plant, not actually working, but about to work, or having just worked, if still “ upon the premises ” are protected. Evidently the premises meant are not any lands which the employer owns, but rather the immediate premises or grounds upon which the plant is located. Where, as in this case, a workman lives in a house rented of the employer from which, to get to the plant, he must go out upon a public street, he is not while within his own dooryard, though on his way to work, “ upon the premises * * * of his employer ” within the meaning of the act. Was the deceased, though away from the plant and premises of the employer at the moment of the accident, acting “ in the course of his employment? ” He was carrying a basket of linen to the plant, at the request of his wife, who conducted a restaurant for the defendant in the office building of which the deceased was janitor. They left their house together at about ten minutes to eight in the morning. The wife started with the basket from the door, but before they left their premises handed it over to the deceased with a request that he carry it. It is contended that deceased was employed to [142] assist Ms wife, and that in carrying the basket he was, therefore, doing his master’s work. In finding a verdict for the plaintiff the jury necessarily determined that deceased was not so employed. That determination was sufficiently supported by the proof. The wife of the deceased had been employed for several months prior to the employment of the deceased. They were not employed together or at the same time. The wife testified, that at the time of hiring of the deceased she was present and not a word was said about Ms assisting her; that he was to act as janitor, to take care of the office, to sweep it, to clean It, to wash windows and to cut the grass in front of the office; that he was to do no work in reference to the laundry or her work therein. She said that he did no such work and never ‘carried her basket of wasMng; that usually he went to work - at ten minutes to eight and she at ten; that tMs was the first occasion when going to work together he carried her basket. 'For the defense one witness testified that he told the deceased, when hiring him, that he was to help Ms wife in any way possible. Another witness testified that he frequently saw deceased carrymg baskets of linen from Ms house to the office, but when pressed admitted that he did not know what the baskets contained. TMs is all the testimony given upon the subject.. For us to decide that the two latter witnesses, rather than the wife, should be credited, is to usurp the functions of the jury. The evidence was ample to support a finding that the husband in carrying the basket was not doing work which he was employed to do and was not acting “ in the course of Ms employment.” The judgment should be affirmed, with costs. All concurred, except John M. Kellogg, P. J., dissenting in opimon in wMch Woodward, J., concurred.