
    Before State Industrial Commission, Respondent. In the Matter of the Claim of Catherine Putnam, Respondent, for Compensation to Herself, under the Workmen’s Compensation Law, v. Fred Murray, Employer, and The Travelers’ Insurance Company, Insurance Carrier, Appellants.
    Third Department,
    September 13, 1916.
    Workmen’s Compensation Law — injury to person engaged in collecting dirt from public street — stepping upon rusty nail ■— award — danger of ordinary pedestrians immaterial.
    The driver of a truck, employed to collect dirt from the streets of a city, being concededly engaged in a hazardous employment under group 41 of the Workmen’s Compensation Law, who while so engaged received an injury which resulted in his death, caused by stepping upon a rusty nail in a board lying in the street while he was in the act of getting upon his wagon, may be deemed to have been injured in the course of a hazardous employment, and his widow is entitled to an award. It is immaterial that persons not engaged in hazardous employments and merely using a public street were exposed to similar injury.
    Howard, J., dissented.
    Appeal by Fred Murray and another from an award of the State Industrial- Commission, entered in the office of said Commission on the 8th day of December, 1915, and from a further award entered in said office on the 3d day of February, 1916.
    
      
      Amos H. Stephens. [E. Clyde Sherwood and William B. Davis of counsel], for the appellants.
    
      Egburt E. Woodbury; Attorney-General [E. C. Aiken Deputy Attorney-General, of counsel], for the respondent.
    
      Robert W. Bonynge, for the Workmen’s Compensation Commission.
    
      Thomas Woods, for the claimant, respondent.
   Lyon, J.:

The sole question at issue upon this appeal is whether the death of the deceased can be said to have arisen out of his employment. He was engaged in the occupation of driver in the business of teaming, trucking and livery. While working for his employer in collecting dirt from the streets of Syracuse, N. Y., he stepped upon a board containing a rusty nail as he was getting up into his wagon. The nail pierced his shoe and went into his foot. The wound became poisoned therefrom and as a result his entire system became infected with tetanus germs, causing his death. The State Industrial Commission found that the injuries were accidental and arose out of and in the course of his employment. The defendants challenge the correctness of the conclusion that his injuries arose out of his employment and cite in support of their contention the cases of Matter of Newman v. Newman (218 N. Y. 325); Sheldon v. Needham (7 B. W. C. C. 471); Kitchenham v. S. S. “Johannesburg” (4 id. 311); Mitchell v. S. S. “Saxon” (5 id. 623) and Matter of De Filippis v. Falkenberg (170 App. Div. 153); and the defendants contend that there can be no liability as the accident arose from a common risk to which any person was equally exposed who happened to travel that way on foot without regard to the nature of his employment.

The general distinction between the cases cited, and the case at bar is that in the former it was held that the injuries were not received while the employee was engaged in one of the hazardous occupations specified in the Workmen’s Compensation Law, or in doing an act incidental thereto. In the case at bar the deceased was engaged in the operation on streets of a wagon drawn by horses, which was concededly a hazardous employment under group 41 of section 2 (Consol. Laws, chap. 67; Laws of 1914, chap 41.) His duties were not limited to simply driving his team. They included also the loading of his wagon. (Matter of Costello v. Taylor, 217 N. Y. 179; Matter of Dale v. Saunders Bros., 218 id. 59.) The Commission has found that one of the duties of deceased was going about the streets shoveling dirt into his wagon. One of the necessary incidents of driving about the streets was getting on and off his wagon. While the danger of stepping on the nail may be said to have been common to all persons using the street, an injury therefrom to a mere passer along the street, not engaged in a hazardous employment or in the performance of an act incidental thereto, would probably not afford a right to compensation under the act. The hazardous employment of the deceased required his continued presence upon the street in the discharge of the duties of his employment. The mere fact that a person not engaged in a hazardous employment was exposed to the danger of a similar injury should he chance to travel that way, furnishes no argument for a denial of the right of compensation to a person whose hazardous employment compelled his constant presence on the street. In the case of M’Neice v. Singer Sewing Machine Company, Limited (4 B. W. C. C. 351; 48 Sc. L. R. 15), the Court of Sessions, Scotland, held that where a salesman and collector riding in a street on a bicycle, in the course of his employment, was kicked on the knee by a passing horse and injured, the accident arose out of the employment. This case was cited, and the principle on which it was based, approved by the Court of Appeal, England, in the case of Pierce v. Provident Clothing and Supply Co., Ltd. (4 B. W. C. C. 242; L. R. [1911] 1 K. B. 997; 104 L. T. 473), in which that court quotes from the M’Neice case as follows: “ The only question to be determined that has been argued before us is whether it arose out of his employment. How, I think it did. 1 think that it was one of the ordinary dangérs to which his employment exposed him, because it is quite clear from the statements before us that his employment as collector forced him to traverse the streets. And I think, therefore, that a danger which is an ordinary danger in the street — and I think that we are entitled of our own knowledge to know that the behaviour of a passing horse is one of the ordinary dangers of the street — is therefore a danger arising out of his employment. It is quite true that many members of the public are exposed to the same danger, but that does not seem to me to be the criterion. These many members of the public might be either parties who are in employment or who are not; but even if they were parties in employment, they might well be in the street, not in the course of their employment, and then there would be no liability. I refer to the ordinary case of a workman who is leaving the factory. After he has once got clear of the factory and is going to his own home in another part of the town, he would not then be injured in the course of his employment. But, here, the man in the course of his employment is compelled to go into the streets. I cannot myself distinguish between this case and the case of a coachman, who has to drive about the streets for his master’s benefit and not for his own and is injured. I think the appellant was injured by a danger arising out of his employment.” The court then adds, Cozens-Hardy, M. R., writing the opinion, in which Harwell and Buckley, L. JJ., concurred: “I respectfully desire to adopt that decision and to follow it in the present case on the first point that was argued, namely, that this accident did not give rise to a claim because any one else in the street was exposed to the same risk.” I have quoted from this decision at some length as it seems to so aptly answer defendants’ chief objection to an affirmance of the award.

I think the decision of the Commission was correct, and that the award should be confirmed.

All concurred, except Howard, J., who dissented.

Award affirmed. 
      
       Since amd. by Laws of 1916, chap. 622.— [Rep.
     