Claim of Santos v. Guemes

270 A.D. 1057, 63 N.Y.S.2d 61, 1946 N.Y. App. Div. LEXIS 5300

Opinion

— Claimant, a barber, was injured in the course of his employment while working in employer-appellant’s street level barbershop located at 2373 Eighth Avenue near 126th Street in the Harlem section of Hew York City at 9:00 p.m. in October, 1944, when he was shot in the cheek by a bullet fired into the shop by someone outside during the course of a street fight between rival gangs of teen-age ruffians. The shot was fired by an unknown one of a group of fighters at another of a rival group who had run through the open doorway of the barbershop for haven. There was evidence to support the finding that claimant’s injury arose out of as well as in the course of his employment. Where the place of employment is in fact so located and maintained that in the very nature of things it is peculiarly exposed to a given street risk, injury therefrom may be said to have arisen out of such employment, for the fact of employment is inseparable from dangers in which it abounds. (Matter of Greenberg v. Voit, 224 App. Div. 799, affd. 250 H. Y. 543.) The fact that claimant’s employment required him to work in a place maintained for public patronage, located adjacent to,and level with a public highway, so related the dangers which produced his injury to his employment that, within the holding in Matter of Christiansen v. Sill Reproduction Co. (262 App. Div. 379, affd. 287 H. Y. 690), it may be said that the injury arose out of the employment. Decision and award affirmed, with costs to the Workmen’s Compensation Board. All concur. [See 271 App. Div. 757.]