I think this simple fall to the pavement
due to physical seizure by a man walking thereon is not the same in principle as a fall from an elevated scaffold or a ladder or the seat of a wagon. In Matter of Barath v. Arnold Paint Co. (238 N. Y. 625) the man fell from a scaffold. In Matter of Mausert v. Albany Builders S. Co. (250 N. Y. 21) there was a fall from a wagon seat and the man was crushed by the wheels of the wagon. The distinction is that in those cases the employment created a greater hazard than the average member of the public is subjected to and the consequences of the fall would not have occurred except for the employment. The average citizen would not be compelled to occupy such a precarious position on an elevated scaffold or wagon seat or be where he would be crushed by the wheels of such wagon if he fell therefrom. The average citizen would, however, be subjected to the ordinary risk of a fall to the pavement, due to physical seizure as he walked along in everyday life apart from any employment. I believe this distinction is made in the opinion of Judge O’Brien in the Mausert case. I dissent and vote for a reversal.
Award affirmed, with costs to the State Industrial Board.