Claims of Montpetit v. Standard Shade Roller Corp.

Appeal from decision and award of the Workmen’s Compensation Board. In horseplay which began by throwing water in employer’s factory, a fellow employee threw gasoline, which he mistook for water, on Wallace Montpetit. The gasoline ignited, causing Montpetit’s death. The record suggests that Montpetit initiated or took part in the initiation of the horseplay. Since Matter of Industrial Comr. (Siguin) v. McCarthy ( 295 N. Y. 443 ), at least, this alone will not defeat the claim. There is evidence, including the testimony of employer’s foreman, that horseplay had been indulged in. The foreman, testifying to the acts, said he accompanied his knowledge of these acts by a warning not to engage in horseplay or to throw water. There was some other proof that such a warning was not given. The risk of the employer does not necessarily stop with a warning which might sometimes be insufficient, or so it could be found. The decision appealed from is entitled to all the favorable inferences from the record in its favor. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Heffeman, Brewster, Deyo and Bergan, JJ.