Claim of Smith v. O. M. Osterheld & Son

Headnote

Workmen’s Compensation Law — award for death — accident arising out of and in course of employment.

Smith v. Osterheld & Son, 189 App. Div. 384 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial depart

ment, entered November 21, 1919, unanimously affirming an award of the state industrial commission, made under the Workmen’s Compensation Law. Claimant’s husband, on the day of his death, was engaged in the regular course of his employment, helping to unload a freight car which contained lumber, and load it on to a truck sent there for that purpose. At about ten o’clock in the morning he went to the office of the Central Railroad of New Jersey at the Bronx terminal on the easterly side of Third avenue near One Hundred and Thirty-third, street, and used the public telephone for the purpose of inquiring from his employers when the next truck would be in the yard. He was informed that no truck would be there until one o’clock in the afternoon, and was instructed to remain in the yard until that time. Shortly after this telephone communication to his employers he "vas found dead in the main yard of the Central Railroad of New Jersey, a short distance from the railroad company’s office. The Appellate Division held that in the absence of substantial evidence to the contrary it would be “ presumed that his journey was made to serve his master, and that' he was killed by an accident arising out of and in the course of his employment.”