German v. Abner S. Reeve & Son

At a hearing held on petitioner’s claim for compensation in the above ease, on December 31st, 1924, petitioner, by his testimony discloses that he, the claimant, was not a regular employe. He was a casual man who helped out occasionally in unloading coal, and was paid by the job. On the day of the accident he was riding on one of the employer’s coal trucks, which was being driven to the place where the coal was to be unloaded. He sat on the seat with the driver, and when the track reached the destination he would have helped in unloading. As the truck was being driven slowly along the street lie noticed two lead pencils, and while the truck was still in motion he either jumped or stepped from the truck to pick up the pencils. In some unexplained manner he slipped or fell, and one of the wheels ran over his ankle, causing the injuries in question.

That the accident did not arise out of the course of employment is evident by the opinion in the case of Smith v. Crescent Belting and Packing Co. 37 N. J. L. J. 292, in which a boy was injured while interfering with an elevator, and the Common Pleas Court of Mercer county, in deciding the issue used the following language: “It has been held that when a workman does something entirely foreign to the work which he is employed to do, &c.”

And as also evidenced in the case of Di Salvio v. Menihan Co., 225 N. Y. 123, Chief Justice Hiscock, in the Court of *880Appeals, New York State, in Ms opinion., stated that claimant went across the room in which he was employed to say “goodbye” to another workman, and while leaning on a bench the claimant’s arm was caught in a cog wheel, resulting in injuries. The Court of Appeals held that such an injury did not arise out of or in the course of employment, and, in his opinion, stated that “this- act did not enable him either directly or indirectly, -in any tangible sense, ■ to better perform his work,” &'c.

Both these opinions directly state the disposition that should be made of the above case, and since the petitioner, in endeavoring to procure the lead pencils, took himself out of his employment, he is accordingly not entitled to an award.

Be is now ordered on this 21st day of July, 1925, that the aforesaid claim is hereby dismissed without cost to the respondent.