The claimant, Frost, lost his eye in an accident while at work for his employer. The evidence of what took place will sustain the following recital. Frost was at work in what is designated as a tool room, thirty by twenty feet, with a window in the wall of the east side. The window was four feet from the floor; it was three feet wide; underneath the sill was a shelf or counter. Men came to the window to get and to return tools and other accessories of the employer’s business. A Mr. Griffith came and asked for something that was not then at hand and claimant, on this shelf, started to write an order to another department to hurry up the supply. As he commenced to write, one Randall came to the window and asked for wire. Claimant handed him a spool of wire with his left hand and by a continuance of the same motion of the arm pulled down Randall’s cap, completing the motion of his hand, immediately commenced to write, or to continue with the writing. He was then three or four feet from Randall. He, Randall, had a ten-inch mill file in his hand (this has reference to the steel file without handle) and as he raised his hand to adjust his cap this heavy file fell from the handle striking the claimant, who was then writing, in the eye. Had the file been firmly fixed in the handle no accident could or would have happened, because of the distance the claimant was from Randall. His mind and his body, outside of the infinitesimal period of time his left arm was traveling in the arc from the spool of wire to his cap, was^ in his master’s business, and the left arm was not necessary to the performance of the duty he was engaged in at the time. No intention to abandon his employment can be predicated upon these facts; no abandonment, in fact, occurred. Under the circumstances appearing here I feel constrained to dissent from the very able opinion of my associate. Whether the *703act of either the claimant or Randall was friendly or otherwise, is not controlling here. I think the principles laid down in Matter of Heitz v. Ruppert (218 N. Y. 148); Matter of Markell v. Green Felt Shoe Co. (221 id. 493), and Matter of Leonbruno v. Champlain Silk Mills (229 id. 470) apply here." I am not unmindful of the distinction between the aggressor and the injured pointed out by my learned associate, but conditions underlying the employment in factories must not be lost sight of. Judge Cardozo in the last cited case, adopting the doctrine laid down in Hulley v. Moosbrugger (87 N. J. L. 103), says “ that it was ‘ but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment’s diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor.’ The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment.”
I dissent and favor affirmance.
Hasbrouck, J., concurs.
Award reversed, with costs against the State Industrial Board, and claim dismissed.