Claim of Fineman v. Albany Evening Union Co.

254 A.D. 794, 4 N.Y.S.2d 127, 1938 N.Y. App. Div. LEXIS 7635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1938
• Status: Published

Opinion

Appeal from an award to dependent father for death benefits. Deceased was employed to deliver newspapers. In this employment, at about six p. m., November 9, 1936, he was driving his automobile from Westerlo to South Westerlo. While thus driving he passed another car which had hit a deer. He stopped, backed his car some distance to a place near the other car, left his car, walked across the road and talked for two or three minutes with William Barkman, the other driver, who asked decedent if he could ride with him to Barkman’s home, which was about two miles away. Seeing the lights of an approaching car, Barkman remarked that “ there is a car coming, we had better get out of the road,” and stepped behind his car. He testified concerning the deceased: “ I don’t know where he went, I haven’t the slightest idea. Q. In the matter of a split second you heard a crash? A. Tes.” He heard deceased groaning, went to investigate and found him lying by the side of the road about forty feet behind decedent’s car. He further testified: “ Q. He started for his car after he finished talking to you on the road? A. He must have. Q. Then you heard that crash? A^Yes.” Points raised by appellants are that the injuries did not arise out of and in the course of employment and that proof of dependency is not established as a matter of law. Award unanimously affirmed, with costs to the State Industrial Board. Present —■ Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ.