Opinion
October 27, 1967
Appeal by employer and its insurance carrier from a decision and award of the Workmen's Compensation Board. Appellants contend that the accident did not arise out of and during the course of employment. Claimant, a 14 year-old boy, delivered newspapers for the employer. He had a route consisting of four or five blocks near his home and had to pick up his papers at a shopping center about a quarter mile away. He delivered 53 papers which would make a pile three feet high and weighed 35 to 40 pounds. Claimant used a bicycle to pick up his papers and to deliver them. This was the common practice and known to the employer. Although other methods were used, apparently the size and weight of the papers necessitated some assistance and at the time claimant was hired he was asked whether he had a bicycle with a basket. On May 25, 1965, while going from his home to pick up his papers, claimant was riding his bicycle, hit a bump, fell and fractured his arm. He was several stores away from where he picked up his papers. He reported the accident and proceeded to get his papers and attempted to deliver them but was forced to seek medical attention because of pain. The board found that because of the distance to be travelled between claimant's route and the place where he had to pick up the papers and the height and weight of the papers he had to deliver, the accident arose out of and in the course of employment. Upon the record before us, there is substantial evidence to sustain the board's conclusion that the bicycle was a necessary accessory of employment in this case. Matter of Taber v. Abraham ( 3 A.D.2d 776), relied upon by appellants is distinguishable on its facts, and we cannot say as a matter of law that the board erred. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Aulisi, J.