Claim of Whalen v. Stanwood Towing Co.

H. T. Kellogg, J.: The deceased was captain of a tugboat which was tied up at Pier 11 in the East river. On January 20, 1918, at about nine-thirty a. m., he called up the office of his employer. The officer in charge assumed from his talk that he was intoxicated, and directed him to come to the office. He attended at about eleven-thirty, was paid off and discharged. Thereafter, between eleven and one o’clock, he was seen in the pilot house of the tugboat, and at this time asked a friend to come aboard for something to eat. The engineer of the tugboat saw him when he came back from the office, at which time he stated that he was through, and had come for his clothes. The engineer had dinner with him, and last saw him at about one-thirty o’clock when he was still on board, though he had started for the shore. He was never seen.alive again. On May 3, 1918, his dead body was found in the river in the vicinity of Pier 11. If it be considered that, after the discharge of the deceased, his employment continued a reasonable length of time, to enable him to remove his belongings from the boat, it must nevertheless have ceased immediately upon his leaving it. It cannot be inferred that he fell into the water while in the act of leaving the boat, or prior thereto, rather than that after leaving it he fell from the dock while proceeding along its edge in an intoxicated condition. Indeed, it would seem that if he fell while in the act of leaving, the engineer who saw him start for shore would have heard a splash of water when he struck it, or heard him cry for help. Only a mere guess leads to the conclusion that the deceased fell into the water prior to attaining a secure foothold upon the pier. There was no proof, therefore, that the deceased came to his death through an accident arising in the course of- his employment. The award should be reversed and the claim dismissed. All concurred, except John M. Kellogg, P. J., dissenting.