Claim of Lief v. A. Walzer & Son

248 A.D. 651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1936
• Status: Published

Opinion

This is an appeal by the employer and the insurance carrier from an award in favor of the claimant. The sole point involved is the contention of the appellants that claimant’s injury was due to an act which was entirely personal to himself and did not arise out of and in the course of the employemnt. The claimant was a salesman, and had taken a train from Dallas, Tex., to Kansas City, which was the next stop in the course of his employment. He entered a train fifty minutes before leaving time, and decided to shave. As he shaved, washed and combed his hair he had the habit of brushing up his eyebrows, and as he did so the train jolted, and the bristles of his brush entered his eye, causing the injury in question. While claimant was performing a personal act, the injury was caused not by such act but by the jolt of the train, which was a risk growing out of his employment. Such risk is not ordinarily present in a hotel or home. The claimant was actually traveling on the business of his employer at the time of the accident. The risk was one incidental and peculiar to that mode of travel and the circumstances .in which he was then serving his master. Award affirmed, with costs to the State Industrial Board. Rhodes, MeNamee and Bliss, JJ., concur; Hill, P. J., and Crapser, J., dissent on the ground that claimant’s injury was due to an act which was entirely personal to himself and did not arise out of and in the course of the employment, on the authority of Matter of Pisko v. Mintz (262 N. Y. 176, 179); Matter of Davidson v. Pansy Waist Co. (240 id. 584).