Opinion
January 8, 1919.
Amos H. Stephens [ E.C. Sherwood and William B. Davis of counsel], for the appellants.
Merton E. Lewis, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge, counsel for State Industrial Commission, for the respondents.
This is an appeal from an award of the State Industrial Commission for the loss of an eye. On March 2, 1917, the claimant and one William Earl were employed as chauffeurs by John E. Donovan. They had been that afternoon directed by him to clean up the garage and cars. The premises of the employer consisted of a garage, dock, stable, blacksmith shop and machine shop. Laurino and other employees of Donovan had been hauling coal to the dock that forenoon. There was a pile of coal on the dock about 200 feet from the garage. Earl found an explosive cap with a copper wire attachment in the pile of coal. He brought it into the garage and was attempting to remove the wire from the cap when it exploded and struck Laurino, who was passing in the performance of his work, in the right eye, destroying the sight. The Commission awarded Laurino compensation for the loss of an eye, from which award this appeal has been taken.
Upon a former appeal the award was reversed and the claim dismissed. ( 183 App. Div. 169.) Upon application the order was modified, and the claim remitted to the Commission for a further hearing. The evidence then was that the cap was found somewhere not on the premises of the employer. The evidence now is that Earl found the cap in the employer's coal then on the dock. It was the duty of Earl to acquaint his employer with the fact that he had found the cap in the coal. His failure so to do might result in the cap being put into the furnace of the employer, which might bring about an explosion, severely damaging the employer's property, and endangering life. The appellant contends that the accident did not arise out of claimant's employment. It was perhaps careless for Earl to experiment with the cap, but it was neither a sportive nor a willful act. The claimant suffered injury from Earl's acts while claimant was about his employer's business. He was engaged in the discharge of his duties when the explosion occurred. He was injured through the carelessness and neglect of a fellow-workman which was an incidental risk of his employment.
The award should be affirmed.
Award unanimously affirmed.