The employer, the Uvalde Asphalt Paving Company, operated a plant at Williamsburgh, N. Y., to prepare asphalt for paving. It employed the claimant, a colored man, there as a laborer and as the result of his employment the dust of the work covered him to such an extent as to almost make him appear white.
On December 14, 1921, he was given to understand he was laid off at eleven-thirty A. M. Whether the claimant so understood it, we do not know. He remained on the premises of his employer to eat his lunch and after having eaten it he undertook to clean himself up to make himself respectable to go upon the street. He procured a pail in which he got some water out of a tank on the premises and while at the tank the pail slipped into it and claimant in endeavoring to recover the pail stepped into a hole at the side of the tank which was filled with hot water. His balance was so disturbed by his accident that both feet entered the hot water and were quite seriously burned. Hines, plant superintendent, does not swear he saw the accident. He did not hear of it until he got through with his work at two o’clock. He does not swear he saw the claimant after the accident. It is entirely probable that the accident occurred immediately after the claimant had eaten his lunch. About two o’clock might mean anywhere from one to two. An hour might have elapsed before the superintendent knew “ about two o’clock ” an accident had happened.
The appellant, makes the point that the accident that caused the plaintiff’s injury did not occur in the course of his employment nor arise out of his employment. It is held to be the law “ 1 that an employee on quitting work for the day is entitled to a reasonable opportunity to leave the employer’s plant and place himself upon a public highway, and that if injured before reaching the public highway, provided he uses reasonable speed in leaving the plant, he is covered by the [Workmen’s] Compensation Law.’ ” (Pope v. Merritt & Chapman Derrick & Wrecking Co., 177 App. Div. 69.) It is undoubtedly the law that where a person loiters upon the premises of his employer and is injured while loitering the risk of of injury, if sustained, is not that of the employer. (Gane v. Norton Hill Colliery Co., 2 B. W. C. C. 42.)
The instant case, it appears to me, is quite distinguishable from that of a laborer injured while loitering. Here, there is absolutely *787no evidence of loitering. The only evidence is that he ate his lunch and undertook to wash himself. Thus at the time of his injury he was engaged in the performance of an act which was incident to his employment, viz., that of making himself presentable upon the street.
There are several cases which support the award in the instant case if there had been no lapse of time between claimant’s eating his lunch upon the premises, which laborers ordinarily did, and washing himself for his departure therefrom. (Sexton v. Public Service Commission, 180 App. Div. 111; Peavey v. Robertson Company, 202 id. 772; Karney v. National Bag Co., 193 id. 930, 931; Matter of Ross v. Howieson, 232 N. Y. 604.)
It must be quite apparent that what the claimant was actually engaged in at the time he was injured was an incident of his employment and made necessary by the character of his work. Whether the incident of washing and cleaning himself was performed immediately after his discharge at eleven-thirty o’clock a. m., or after his lunch at a later time, it seems to me does not affect the character of his occupation at the time he was injured. Cleansing remained an incident of his employment until he left his employer’s premises , and attained the public thoroughfare, providing he did not loiter.
I submit that there is no proof of loitering; ordinary estimates of time are so elastic. Giving to understand claimant was laid off at eleven-thirty o’clock a. m., and knowing of the accident about two o’clock are too inexact to furnish an inference to overthrow the truth of claimant’s testimony that he ate his lunch and then went in search of the means to cleanse himself. We are bound by the finding of fact that after eating his lunch he undertook to wash himself. Such finding excludes loitering.
The award should be affirmed, with costs.
Award reversed and claim dismissed, with costs against the State Industrial Board.