Wilson v. C. Dorflinger & Sons — 155 N.Y.S. 857

Majority

p. 857

WILSON v. C. DORFLINGER & SONS et al.

(No. 247-60.)

(Supreme Court, Appellate Division, Third Department.

November 10, 1915.)

Headnote

Master and Servant @=»87%, New, vol. 16 Key-No. Series—Workmen’s Compensation Act—“Vehicle”—“Otherwise Than on Tracks.”

A porter and shipping clerk, employed in a house engaged in the business oi' selling glassware, and required to operate an elevator when he had occasion to use it, there being no elevator man, but the elevator being used by different employes irom time to time, was engaged in a hazardous business, within the Workmen’s Compensation Law (Consol. Laws, c. 67) § 2, group 41, embracing the operation, otherwise than on tracks on streets, highways, or elsewhere, of cars, trucks, wagons, or other vehicles, since the elevator as a means of carrying persons and things was a “vehicle,” and, notwithstanding guides on each side to keep it plumb, etc., not within the exception “otherwise than on tracks,” and since group 41, embraces the operation of every kind of vehicle by steam, electric, or other motive power.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Vehicle.]

<®=oFor other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes

Appeal from State Workmen’s Compensation Commission.

Proceedings under the Workmen’s Compensation Act by Leona Wilson for compensation to herself for the death of her husband, William H. Wilson, opposed by C. Dorflinger & Sons, employers, and the Knickerbocker Mutual Liability Insurance Company of New York, insurer. Compensation was awarded, and the employer and insurer appeal. Award affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Arthur Butler Graham, of New York City (Archibald Ewing Stevenson and William H. Woolley, both of New York City, on the brief), for appellants.

The Attorney General, E. C. Aiken, Deputy Atty. Gen., and Jeremiah F. Connor, of New York City, for respondent.

Unquestionably the deceased met his death while in the employment. A freight elevator was used sometimes by the employés in going from floor to floor, especially when carrying merchandise or freight, and the deceased frequently used it. The Commission has found that he accidentally fell down the shaft and was killed. He was found at the bottom of the shaft. It also finds that he was employed as a porter and shipping clerk, and that one of his incidental duties was to operate the elevator when he had occasion to use it. It also finds that the employers were engaged in the business of selling glassware.

The employers’ first report describes their business as a glass-selling agency. The employers’ affidavit, attached to the proof of loss, in answer to the question, “What is the kind of character of the business conducted?” answers, “Mfrs. of glassware.” But the finding of the Commission that the employers were engaged in the business of selling

p. 858

glassware, in connection with the evidence, establishes conclusively that they were not manufacturers of glass, but sellers of glass only, and therefore the case does not come within group 20 of section 2 of the Workmen’s Compensation Law. The employé was not engaged in a hazardous business within the Workmen’s Compensation Law, unless the business falls within group 41 of that section, which embraces:

“The operation, otherwise than on tracks, on streets, highways, or elsewhere, of cars, trucks, wagons or other vehicles, and rollers and engines propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules.”

There was no elevator man, but the elevator was used in the business by the different employés from time to time. The serious question is whether it was a “vehicle,” within the meaning of group 41. Clearly it was a means of carrying persons and things, and falls fairly within the definition of a vehicle. There seems to- be no good reason why cars, trucks, and wagons, propelled in the manner mentioned in that group, should be included, and an elevator excluded. They are all vehicles for the carrying of persons and things. It cannot be urged that an elevator is excepted by the expression “otherwise than on tracks.” There are guides upon each side of the elevator to keep it plumb and to facilitate its operation, but it cannot be said to be operated upon tracks within the meaning of that section. If such a construction were to be given, the reasoning, would force it into group 1, which includes the operation of railways operated by steam, electric, or other motive power, street railways, and incline railways. The elevator is operated by the power mentioned in group- 41, and a liberal construction of the statute brings it within that group. Group 1 and 41 seem to embrace the operation of every kind of a vehicle by steam, electric, or other motive power.

The award should therefore be affirmed. All concur.