
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Ralph Raymond Moore, Claimant, Respondent, for Compensation under the Workmen’s Compensation Law, v. Lehigh Valley Railroad Company, Employer and Self Insurer, Appellant.
    Third Department,
    July 1, 1915.
    Workmen’s Compensation Law — injury to person employed in interstate commerce — award under State act — accidental injury arising out of and in course of employment— statute construed — accidental injury defined—English decisions — injury to lineman who sought shelter under railroad cars during rain storm.
    One employed by an interstate railroad company to relocate in this State á portion of a telegraph system used in connection with its business, may be entitled to ah award under the State Workmen’s "Compensation' Law for personal injuries received while so engaged, where the injury-was in no way attributable to the negligeinee of the employer, but was wholly' accidental. Such person is-not limited to a recovery under the Federal acts. . . . . ■ ■
    
    
      Section 10 of the Workmen’s Compensation Law, providing for an award to an employee for accidental personal injury arising out of and in the course of his employment, .without regard to the cause of the injury (excepting injury willfully inflicted by the employee or resulting from intoxication), means that the accidental injury must arise both out of and in the course of the employment.
    Hence, it seems, an accidental injury sustained during the course of the employment, but not arising out of the employment, would not be within the purview of the statute.
    Accidental personal injury defined.
    Where a workman employed to reconstruct telegraph lines for a railroad company took shelter during a sudden rain storm under cars standing on a railroad siding, and was injured when the cars were moved by a switch engine, he suffered an accidental injury arising out of and in the course of his employment, within the meaning of the statute, and is entitled to compensation, especially where no shelter from storms was provided for employees, and the time that the work was interrupted from the storm was not deducted from his wages.
    As the State Workmen’s Compensation Law uses, to some extent, the language of the English statute, it seems that the English decisions may be considered by our courts on questions of construction.
    Appeal by the defendant, Lehigh Valley Railroad Company, from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 3d day of December, 1914.
    
      Benjamin F. La Rue [E. H. Boles of counsel], for the appellant.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken of counsel], for the State Workmen’s Compensation Commission.
    
      Jeremiah F. Connor, counsel for the State Workmen’s Compensation Commission.
   Lyon, J.:

This is an appeal from an award under the Workmen’s Compensation Law. The vital question involved is whether the injury sustained by the claimant arose out of his employment. The claimant was a lineman in the employ of the defendant, which owned and operated a. steam railroad, and maintained a line of poles along its right of way from Jersey City, N. J., to Buffalo, 1ST. Y., passing through, the. .town of Le Roy, N. Y. These poles carried telegraph and telephone wires used by the appellant in its commercial business, and for the guidance, through its signal system, of its engineers operating interstate and intrastate trains; and also carried wires operated by the Western Union Telegraph Company under some arrangement with the defendant.

At North Le Roy, N. Y., the defendant’s line of poles was located in such dangerous proximity to a switch, known as the Buffalo, Rochester and Pittsburg switch, that if was decided by the defendant to relocate the line at that point. For this purpose the defendant, at the time the claimant was injured, was erecting a new line of poles and wires upon the opposite side of its track, not disturbing the former line, which it intended to continue to use -until the construction of the new line had been completed and connection made with it.

On July 23,1914, prior to connection having been made with the new line, and while the claimant was working thereon, a violent rainstorm arose. It was not the custom of the defendant to furnish shelter for its linemen in the event of sudden storms, and there was no rule of the defendant as to what the men were to do in such contingency, but each man was supposed to find shelter wherever he could. The defendant was not accustomed to make any deductions in the wages of its linemen by reason of sudden storms interfering with the work, and the defendant made no such deduction upon this occasion. Claimant and several of the other workmen stood under a tree until it no longer furnished protection. Some of the men went into a paper mill near by. There being no more room there, and apparently no other available shelter, the defendant’s foreman, the claimant, and two other of defendant’s workmen found shelter under cars standing upon this switch, about a quarter of a mile from the place where they had been working. While there an engine of the Buffalo, Rochester and Pittsburg Railroad Company moved the cars standing upon the- switch, \ and the claimant, who was sitting with his arms .folded, was struck upon the forehead by a prójection bf the car-and fell over, .and in. some manner his legs came upon the track and were run over and cut off below the knees. The claimant had not. been forbidden to seek-, shelter;.'under cars, and there-was-no rule of the defendant to that effect. The Workmen’s Compensation Commission awarded the claimant, in the absence of proof to the contrary, as for a permanent total disability, two-thirds of his weekly wages for the remainder of his life. Upon the hearing before the Commission the defendant contended that being an interstate railroad its employees did not come within the provisions of the Workmen’s Compensation Law. The appellant has taken this appeal from the award, basing its claim of right to reversal upon the grounds that the Workmen’s Compensation Law is unconstitutional, in that it contravenes the provisions of the Fourteenth Amendment of the Federal Constitution; that at the time of receiving the injury the claimant was engaged in interstate commerce, and that Congress, in passing the Safety Appliance Acts, Hours of Service and Employers’ Liability Acts, had fully legislated with reference to the subject of interstate commerce, to the exclusion of all State legislation; that the State Compensation Commission was without authority to make an award for the reason that the claimant was not engaged in State commerce at the time of receiving his injury within the provisions of section 114 of the Workmen’s Compensation Law; and also upon the ground that the injury to claimant did not arise out of and in the course of his employment.

In the case of Matter of Jensen v. Southern Pacific Co. (167 App. Div. 945), and in the cases of Matter of Burns v. Southern Pacific Co. (Id.) and Matter of Walker v. Clyde Steamship Co. (Id.), argued therewith, decided by us at the March term, now before the Court of Appeals, we held the Workmen’s Compensation Law to be constitutional; and in the case of Matter of Winfield v. N. Y. C. & H. R. R. R. Co. (168. App. Div.' 351), decided by us by a divided court at the May term,.vwe. held that the' claimant although engaged in interstate commerce was not excluded by section 114 of the Workmens Compensation. .Law .'from claiming benefits under, that, law, 'whéró.the injuryewas in no-way'attributable to the negligence, of. the"employer but was as "to it'- wholly accidental. :::In .view .of. these decisions .the'.' questions-involved therein-are no longer open ones .in this, court,.' and -'"the1only question -which need now.be considered, is whether the injury sustained by the claimant arose out of and in the course of his employment, within the intent of the act. Section 10 of the Workmen’s Compensation Law (Consol. Laws. chap. 67; Laws of 1913, chap. 816, as re-enacted and amd. by Laws of 1914, chap. 41) provides that “ Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty.” The construction of telegraph and telephone lines was one of the employments covered by the Workmen’s Compensation Law. Concededly, the injury to the claimant was not occasioned by his willful intention or intoxication, and was accidental within the meaning of the statute.

The House of Lords defined the meaning of “'personal injury by accident” in the English Workmen’s Compensation Act, 1897 (60 & 61 Vict. chap. 37, § 1) as “an unlooked for mishap or an untoward event which is not expected or designed.” (Fenton v. Thorley & Co., Ltd., L. R. [1903] A. C. 443; 5 W. C. C. 1.) The meaning of the word “accident” as contained in the New Jersey Compensation Act, which is there known as the Employers’ Liability Act (Laws of 1911, chap. 95), is an unlooked for and untoward event which is not expected or designed. (Bryant v. Fissell, 84 N. J. Law, 72, 76.) The United States Supreme Court has defined the term “ accidental,” as used in an accidental insurance policy, as used “in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected ; ’ * * * if a result'is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but * * * if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.” (Mutual Accident Assn. v. Barry, 131 U. S. 100, 121.)

The use of the conjunctive in the section above quoted indicates that the accidental injury must both arise out of and in the course of the employment. An accidental injury sustained during the course of the employment; but not arising out of the employment, as well as such an injury arising out of the employment, but not sustained during the course of the employment does not fall within the provisions of the Workmen’s Compensation Law. That the injury was sustained by claimant during the course, that is, the period, or time or extent of the employment, is not seriously disputed by the defendant; but the defendant strenuously contends that the injury did not arise out of the employment. That the injuries occurred during working hours which were continuous; that it was customary for defendant’s linemen to cease work and obtain shelter during sudden storms, and that no deduction was made from the ordinary daily wages paid the workmen by reason thereof is conceded. It was not only customary that the claimant should seek shelter from the storm, but doing so was not a remote, but a necessary and unquestionably frequent incident of his employment during the summer months. Had he taken shelter in the paper mill and the roof fallen in, or the floor given way, and he been accidentally injured, he would have been entitled to the benefit' of the Workmen’s Compensation Law. Whether a place in a stone crusher being operated by machinery, or under a car standing upon a switch, was the safer place, does not appear. The four linemen chose places under the cars. However, assuming that the place under the car was the more dangerous, the fact that the plaintiff’s judgment led him to choose it and that he was injured there does not bar him from the operation of the act. Contributory negligence furnishes no ground of defense. The Workmen’s Compensation Law says that the employer shall provide compensation “without regard to fault as a cause of such injury. ” The risk of accidental injury was incidental to the claimant seeking and obtaining shelter, and to his employment, and was fairly within the contemplation of both employer and employee. The act of seeking and obtaining shelter arose out of, that is, was within the scope or the sphere of his employment, and was a necessary adjunct and an incident to his engaging in and continuing such employment. The language “ arising out of and in the course of the employment ” is also used in the English act (supra), and we may, therefore, properly examine the decisions of the courts of that country for their views as to the construction of this language as applied to cases more or less similar to the case before us. (See, also, English Workmen’s Compensation Act, 1906 [6 Edw. 7, chap. 58], § 1.) Where by an arrangement between a railway company and certain employees they were allowed to go to a cabin on the railway company’s premises for certain meals, and one of such employees was returning from the cabin after having a meal there, and was knocked down by a car which was being shunted on one of the company’s tracks, it was held that the injury arose out of and in the course of the employment. {Earnshaw v. Lancashire & YorJcshire By. Co., 115 L. T. Jour. 89; 5 W. C. C. 28.)

A night watchman who left his box and went into a shanty, where tools were kept, to cook and to eat his food, and was injured by the falling of the shanty, was held to have been injured by accident arising out and in the course of his employment. (Morris v. Lambeth Borough Council, [1905] 22 T. L. Rep. 22; 8 W. C. C. 1. See 1 Brad. W. C. L. [2d ed.] 448.)

A bricklayer, who was paid according to the number of hours he woi’ked, remained in the building during the noon hour, although the workmen employed on the building usually went away, and sat down under a wall to eat his dinner. The wall fell while he was sitting there and injured him. The county judge was of the opinion that as he had sat down merely for the purpose of eating his dinner, the accident could not be said to have arisen out of and in the course of the employment. The Court of Appeal held that the time of employment covered all his movements within the ambit of the premises where he was employed which were ancillary to the work which he had to do; and that the court should take a broader view and treat him as still in the employment. Collins, M. R., said: “It was to the interest of the respondent that he should eat the necessary food to enable him to do his work, and he was allowed as part of the terms of employment to stay on the premises during the dinner hour and eat his dinner there. We cannot say that it is an inference of law that, because he was eating his dinner, and was not paid wages in respect of the dinner hour, he ceased to be in the respondent’s employ. I think that the accident here arose out of and in the course of the employment.” All the other judges concurred in that conclusion. (Blovelt v. Sawyer, 6 W. C. C. 16; L. R. [1904] 1 K. B. 271; 89 L. T. Rep. 658.)

• A lighterman while waiting for the tide to ebb sufficiently to allow him to go to work to pump out a barge, went to a small boat about fifty yards from the barge to rest, and in trying to get into the boat was injured. It was held by the Court of Appeal that his injury arose out of and in the course of his employment. (May v. Ison, 7 B. W. C. C. 148; 110 L. T. Rep. 525.)

A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. (Pope v. Hill’s Plymouth Co., 102 L. T. Rep. 632, and on appeal, 1912, 105 id. 678.)

Of cases other than those of the English courts the following are more or less in point: In the case of North Carolina R. R. Co. v. Zachary (232 U. S. 248) it was held that where a locomotive fireman who had prepared his engine for a trip had left it to go to his boarding house a short distance away, and was run over and killed while crossing a track en route to his house, he was then in the employ of the company. The court said: “There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still (on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine. ”

Where a railroad employee in crossing the tracks at a public crossing to reach a toilet, was struck by an automobile and thrown upon the tracks, where he was subsequently struck by one of the defendant’s trains, the accident was one “arising out of and in the course of his employment ” within the meaning of the New Jersey Employers’ Liability Act (supra) for the resulting fatal injury. (Zabriskie v. Erie R. R. Co., 85 N. J. Law, 157.)

An injury sustained by a workman who is employed by the week to work in a room leased to his employer, in the building owned by the lessor, when the workman on his way to lunch, at the noon hour, has left the workroom and is descending the stairway, which is in control of the owner of the building, but which the employer and his employees have the right to use as the only means available for going to and from the workman’s place of employment, can be said to have arisen out of and in the course of his employment within the meaning of the Massachusetts Workmen’s Compensation Act. (Acts of 1911, chap. 751; Matter of Sundine, 218 Mass. 1.)

We have carefully examined the cases cited by the defendant, and so far as the facts in any of such cases are at all similar to those in the case at bar, the claimant when injured was doing an act, or was at a place which his employer had expressly forbidden. Thus, in the case of Parker v. Ham-brook (5 B. W. C. C. 608) before the Court of Appeal in July, 1912, and which is referred to in the defendant’s brief as a case that closely resembles the case at bar, the head note, which correctly states the substance of the decision, reads: “A workman was employed to get flints on the surface or just below the surface of a quarry. He was expressly forbidden to go into a trench eleven feet deep. The workman was paid according to the number of flints dug out. To take shelter from the rain, and to get more flints he went into the trench and was smothered by a fall of earth. Held, the accident did not arise out of and in the course of the employment. ” The defendant also cites the case of Weighill v. South Heaton Coal Co. (4 B. W. C. C. 141) before the Court of Appeal in March, 1911, where a collier in a coal mine was ordered to cut the coal in the colliery. He left his work and went to cut coal in a part of the mine where it was forbidden by special rule to cut any. He thereby undermined some props and caused a fall which killed him. Held, that the accident did not arise out of and in the course of his employment.

However, in the case of Harding v. Brynddu Colliery Co. Ltd. (L. R. [1911] 2 K. B. 747; 4 B. W. C. C. 269) the Court of Appeal, distinguishing the Weighill case, held that where a collier who had been set to drill a hole from above into a seam, in order to draw off gases and render safe the seam, which was marked off as forbidden, and was told that he must not go into the seam to see if the drill was running straight, but nevertheless went and was suffocated, there was evidence to support the finding of the county judge that the accident arose out of and in the course of the employment, and that the appeal by thé employers from the award should be dismissed.

In the case at bar the claimant violated no rule of his employer, did no forbidden act, accepted with the knowledge of defendant’s foreman the only shelter available unless it might have been a place in the stone crusher which was being operated, to the noise of which he seems to attribute his failure to hear the moving locomotive. The defendant in its brief relating to this subject says: “If respondent, therefore, had gone under the cars to get a wire that had become entangled with the under side of the car, and while endeavoring to get it loose, was injured, his accident would have arisen out of his employment, because he would have been performing an act to promote the business of the master, and the accident would have been closely allied to or connected with the work of the employer.” Obtaining shelter from a violent storm in order that he might be able to resume work when the storm was over, was not only necessary to the preservation of the claimant’s health and perhaps his life, but was incident to the claimant’s work, and was an act promoting the business of the master.

I have not taken up the question as to whether building the new line, with which connection had not been made at the time claimant was injured, and which had not yet become an instrumentality of commerce, was intrastate and not interstate as claimed by the respondent, as in the view we have taken in prior cases the question does not seem'to be important. However, there may be cited as bearing on this question Pedersen v. D., L. & W. Railroad (229 U. S. 146) and Shanks v. D., L. & W. R. R. Co. (214 N. Y. 413, 420. See also dissenting opinion, Id. 425).

That the purpose of the Workmen’s Compensation Law was to make the risk of an accidental injury one of the industry itself, even when happening through the fault of the workman, treating it as an element in the cost of production to be added thereto, and hence borne by the community in general; and that the act should be construed liberally, and not strictly as a statute in derogation of the common law, and should receive as broad an interpretation as can fairly be given it, cannot be questioned. However, the purposes of the law have been most excellently stated by Mr. Justice Woodward in his opinion in Matter of Rheinwald v. Builders’ Brick & Supply Co. (168 App. Div. 425), recently decided by this court, and further comment is needless.

I think that the injury to the claimant arose out of and in the course of his employment within the intent of the statute, and, hence, that the award of the Compensation Commission should be affirmed.

All concurred; Smith, P. J., in result; Kellogg, J., not sitting.

Award affirmed.-  