Jacobson's Case

143 N.E. 317, 248 Mass. 466, 1924 Mass. LEXIS 959

Opinion

Carroll, J.

John M. Jacobson was employed by the Underwood Machinery Company as foreman in charge of certain work at Cranston, Rhode Island. He left Boston on Monday and usually returned on Saturday, of each week. In addition to his wages, he was allowed his transportation expenses, and could “ travel any way he pleases.” It was part of his duty to return, to the employer’s office in Boston, the “ papers and cash each week.” On the day of his injury, December 2, 1922, learning that an Autocar was going from Cranston to Everett, he boarded this car, to carry the papers and cash to the employer’s office. When the truck was going up a grade between Wrentham and Walpole, the employee alighted from the moving truck, which continued up the grade. After he had attended to a call of nature, he caught up with the truck, and in attempting to get on it, while moving, he fell under the front wheel, receiving injuries from which he died.

The single member of the Industrial Accident Board found that the injury and death of the employee did not arise out of his employment; on review the board affirmed the finding of the single member; in the Superior Court a decree was entered dismissing the petition for compensation; the claimant appealed.

In attempting to board the moving truck, the employee voluntarily incurred an additional risk neither contemplated by his contract of employment nor incidental thereto. His injuries, therefore, did not arise out of his employment. The case is governed by the decisions holding that an injury does not arise out of the employment when the employee assumes a risk not.fairly contemplated by the agreement of service, as in Borin’s Case, 227 Mass. 452, where the employee climbed over steam vats to open a window; DeCosta’s Case, 241 Mass. 303, where the employee was descending from a staging by means of a rope. See also Hurley’s Case, 240 Mass. 357, in which the employee walked on a beam; Koza’s Case, 236 Mass. 342, where the employee went upon the roof to repair a ventilator; Rockford’s Case, 234 Mass. 93; Haggard’s Case, 234 Mass. 330.

The decree must be affirmed for the reasons stated. We are not called upon to decide whether it falls within the principle of Gardner’s Case, 247 Mass. 308.

Decree affirmed.