I am of the opinion that at the time of the collision Tallon occupied the status of an employee and, therefore, relief should have been sought under the Workmen's Compensation Law.
At the time of the accident he was riding on a pass which entitled him to free transportation to and from his work. Such transportation was an incident of the employment. It was a part of the contract of employment and enforcible by him as such.
The facts bring the case directly within the principle laid down in Matter of Littler v. Fuller Co. (223 N.Y. 369). *Page 416 There, a bricklayer was injured in an accident to an automobile truck which was furnished by his employer to carry him and other workmen from a railroad station to and from a building which they were constructing. It was held the injury arose out of and in the course of his employment and that "the day's work began when he entered the automobile truck in the morning and ended when he left it in the evening."
It is sought to distinguish that case from this by reason of the fact that the automobile had been furnished for the specific purpose of carrying the workmen to and from the place of employment, while here others beside Tallon were permitted to ride in the coach in which he was at the time of the accident. But what possible difference can it make if free transportation be an incident of the employment, whether others are permitted to ride in the same conveyance? The underlying feature in each case is that free transportation is an incident of the employment. The transportation is the same whether it be in a private or public conveyance.
The case is much like Donovan's Case (217 Mass. 76). There, Donovan was employed by one McGreevy in cleaning out catch basins about two miles from his home. It had been and was his custom, in common with other employees, and with the knowledge and consent of his employer, to ride to and from the vicinity of the catch basins in a wagon furnished by his employer, the wagon meeting the employees on the street at the beginning of the day. It was also at the service of the employees at the end of the day, that they might ride in it back to the employer's barn if they wished. Donovan was injured while so riding in this wagon at the end of his day's work. It was held the transportation was incidental to the employment and, therefore, arose "out of and in the course of said employment."
The decisions in the Littler and Donovan cases are in harmony with the English decisions. In Holmes v. *Page 417 Great Northern Ry. Co. (1900, 2 Q.B. 409) an engine cleaner who had been employed by the railway company at one of its stations was directed by his employer to work in a new engine shed some distance away, to which place workmen were conveyed by the railway company free of charge in one of its trains, reaching the station where they were to work a short time before the hour of commencing, and at the close of the day's work being taken back free of charge. It was held the employment of the workman commenced when he got into the train to be conveyed to his work, and not on his arrival at the place where he was to work, and that the accident arose out of and in the course of his employment.
In Stewart Son v. Longhurst (Law Reports, 1917, A.C. 249) a carpenter who was employed in repairing a barge, after finishing his day's work, started to walk along the quay to the dock gates, fell therefrom and was drowned. The dock was private property, but the employees had permission to pass through it, free of charge, on their way to and from the barge. It was held that inasmuch as the employee was on the premises by virtue of his contract of service, that the accident arose out of and in the course of his employment.
In Cross, Tetley Co. v. Catterall (unreported), cited with approval by Lord FINLAY in Stewart Son v. Longhurst (supra), the colliery in which the employee was engaged was approached by a bridge built by the employers over a canal for the convenience of the workmen, and the workman fell into the canal from the bridge while going to work. Lord HALSBURY said in giving his opinion: "I do not agree that his employment only begins at the moment he strikes the coal with his pick. I think the man was really in the employment the moment he reached the bridge. He was doing something on his master's behalf; that is to say, he was on his way to the colliery for the purpose of working." *Page 418
In Cremins v. Guest, Keen Nettlefolds (Law Reports, 1908, 1 K.B. 469) colliers who resided some six miles away from the colliery where they were employed were conveyed every morning by a train composed of carriages belonging to the employers, but driven by the railway company, to a platform a quarter of a mile away from the colliery. The platform was erected by the employers on land belonging to the railway company, for the use of the colliers. The colliers walked from the platform along the highroad to the colliery. In the evening a similar train conveyed the colliers from the platform to their homes. The colliers were conveyed free of charge and it was an implied term of the contract of service that colliers should have the right to travel to and fro without charge. One of the colliers was knocked down and killed while waiting on the platform for the return train. It was held the accident arose out of and in the course of the employment.
Nor do I think Pierson v. Interborough Rapid Transit Co. (184 App. Div. 678; affd., 227 N.Y. 666) or Matter of Kowalek v. New York Cons. R.R. Co. (229 N.Y. 489) upon which appellant chiefly relies, at all in conflict with the views above expressed.
In the Pierson case Pierson was a guard on one of defendant's passenger cars. On arriving at a terminal station he was relieved and another guard took his place. He then had two hours before resuming work. On reaching the terminal he walked out of the train of which his car had been a part, up to the front car, boarded it, sat down and remained until the accident occurred. He was, at the time of the accident, on his way to keep a personal appointment with his dentist. Obviously, the injury to him did not arise out of or in the course of his employment.
In the Kowalek case the decedent was an employee of the elevated railway company, had finished his work for the day, went out upon a station platform for the purpose and with the intention of taking a passenger *Page 419 train to his home. The company permitted him to ride to and from his work upon trains or cars without charge, although it was not obligated to transport him; in other words, free transportation was not incidental to his employment. He went upon the platform, not as an employee, but as a prospective passenger. He was found dead upon the tracks a short distance from the platform, at a point where the general public or passengers had no right to be. His death was caused by coming in contact with the electric rail. It was held his death did not arise out of or in the course of his employment. But Judge COLLIN, in that case, took pains to point out, in the course of the opinion delivered by him, that if the transportation had been an incident of the employment, a different result might have been obtained. He said: "The contract of employment did not obligate the company to transport him. * * * It did not contract that he should ride to and from work or pay him for the time through which he was riding. The transportation was not an incident of the employment. The employment continues throughout the transportation in case the parties by their contract of hiring positively or inferentially so stipulate. If they do not so stipulate, the employee, when he enters into the process of the transportation, is not under the hiring, or control, or in the employment of the employer, and is not an employee." (p. 492.)
Here, as I have pointed out, the transportation was an incident of the employment. It was a part of the contract of hiring. This being so, it seems to me the employment commenced when the decedent entered the car to go to the place where he was to work.
I, therefore, dissent and vote to affirm the order of the Appellate Division.
HOGAN, CARDOZO and ANDREWS, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion and HISCOCK, Ch. J., and POUND, J., concur.
Judgment reversed, etc. *Page 420