Claim of Baker v. Horicon School Board

245 A.D. 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1935
• Status: Published

Opinion

— Claimant was injured in the employ of the school board while shoveling gravel onto a truck, in company with his brother Ellis, Robert Waters and other men. Waters was the truck driver. The brother Ellis threw gravel from his shovel into the cab of the truck, after warning by Waters not to do so, and thereupon an altercation arose between Ellis and Waters. During this scuffle the claimant placed his hand on Waters’ shoulder and warned the men to stop before they got hurt, and then resumed his shoveling. Subsequently, how long after is uncertain from the evidence, Waters holding a stone in his hand struck claimant twice in the head and face, and inflicted serious injuries^ When struck claimant was unaware of Waters’ intentions and movements. One witness testified that Waters “ had been insane before.” The Industrial Board has found that claimant did not initiate the quarrel and was not the aggressor. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.