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would include not only the whole of the journey to and from work upon the public highways and premises of third persons, but also every act done in preparation for the employment, even to the putting on of working clothes at the workman's home.
The course of employment, therefore, is neither limited to the period of actual labor nor is it extended to include all acts necessitated by the workmen's employment. The workman is not regarded as outside the scope of his employment unless actually at work or in the receipt of wages, nor is he regarded as within it because what he is doing is something which has relation only to his work. The test finally adopted lies between the two. The place at which the injury is sustained becomes the determining factor among those things which he does solely because he is engaged in a particular employment; only those are regarded as in the course of the employment which are done within the master's premises or upon some means of conveyance to or from his place of work which is provided by the master for the sole use of his servants and which the servant is required or entitled to use by virtue of his contract of employment.
The employment may be either for an extended period, as a week, month, or year, during which the master is entitled to the entire time of the workman, as in the case of seamen and domestic servants, or on the other hand, it may be for a limited number of hours in each day, as in the case of laborers and employees in factories. If the employment be in the first class, it seems reasonably well settled that the employment begins when the employee presents himself at the beginning of his term of service upon his master's premises, or at the place designated by the latter. The only difficult questions which arise are those concerning his temporarily quitting the service and his return thereto. It is only in those cases where the employment is to devote a certain number of working hours to some definite piece of work that the question as to when the employment begins and ends usually becomes vital. In the great
tracks because of his employment by a contractor with the railway, but would have been a trespasser had it not been for the implied license which he had as the servant of the contractor.
6 This question of course arises once even in an employment of an extended time, i. e. when the servant originally goes into service. See Whitbread v. Arnold, 99 L. T. 103, 1 B. W. C. C. 317 (C. A., 1908). But it arises daily when the employment is for a number of hours a day.
majority of such employments neither the actual work nor the wages begin until after the workman has reached some point well within his master's premises or the place at which the master is carrying on his business.
Both the English and Scottish cases agree that the employment begins when the workman has arrived at the place where his actual work is to be done though the work itself has not begun. And they agree that he is in the course of his employment if he is engaged in doing some act which he is required to do upon the employer's premises in preparation for his labor, or when he reaches some place upon his employer's premises where such required preparatory work is to be done.? The English cases go further, and regard him as in the course of his employment when he is using as a means of
approach to or exit from the scene of his duties some part of his master's premises, provided by the master for such use or which the workmen have used for this purpose with the master's knowledge and with his consent, or at least without his prohibition.8
? Anderson v. Fife Coal Co., Ltd., (1910) Scot. Sess. Cas. 8, 3 B. W. C. C. 539, in which it was held that a miner was not in the course of his employment until he had reached the spot where he was to get his lamp. The Lord Justice Clerk rejects the rule that the moment a man enters the premises of his master he is in the course of employment, and adopts the rule that “he must come to some point at which he enters upon the work which he has to do.” Compare Tod v. The Caledonian Ry. Co., 1 Fraser 1047 (Scot. Ct. Sess., 1899), with Caton v. The Summerlee, etc. Co., Ltd., 4 Fraser 989 (Scot. Ct. Sess., 1902). But see Haley o. The United Collieries, Ltd., (1907] Scot. Sess. Cas.214; Hendry v. The United Collieries, Ltd., 47 Scot. L. Rep.635, 3 B.W.C. C. 567 (Ct. Sess., 1910), in which workmen, injured in the one case on his way to get his pay and in the other on his way home, were denied compensation not because they were not at their working places but because they had not used the paths provided by their employers.
8 Gane v. Norton Hill Colliery Co., (1909) 2 K. B. 539, 2 B.W.C. C. 42; Hoskins v. J. Lancaster, 3 B. W.C. C. 476 (1910). It is enough that the workman is using a path or route which is customarily used by workmen to the master's knowledge, at least if the master has not forbidden its use. While a workman may not loiter unnecessarily upon his employer's premises, Smith v. South Normanton Colliery Co., Ltd., (1903) I K. B. 204, 5 W. C. C. 14; Benson v. Lancashire & Yorkshire Ry. Co., (1904) i K. B. 242, 6 W. C. C. 20, he is allowed a reasonable time to get to and from his work. What is a reasonable time depends on the circumstances of the case. So if the workmen are obliged to come and go by trains which arrive and leave some little time before and after the work begins and ends, the workmen are not required to pass these intervals on the public highways, but are in the course of their employment while passing them upon their employer's premises, especially if their custom of so doing is known to their employer and he has provided for their accommodation. Sharp o. Johnson & Co., (190;] 2 K. B. 139, 7 W. C. C. 28.
And a workman is held to be in the course of his employment while traveling to or from his work upon the conveyance which, though not owned or controlled by the employer, is provided by him for the sole use of the employees and which the workman, though not required, is permitted to use by virtue of his contract of employment.
9 Cremins v. Gest, Keene & Nettlefolds, Ltd., (1908) 1 K. B. 469, 1 B. W. C. C. 16. In this case mine owners provided a daily train by which their employees traveled to and from the nearest town to the mines. The coaches were the property of the employers, but the engine was owned by the railway, which operated the train with its own crew and over its own line. The train was run exclusively for the use of the miners, no charge being made for conveyance upon it; but the miners were not required to travel by it and no allowance was made to those who did not travel by it.
The accident happened at the platform upon the railway property which had been constructed by the mine owners and was repaired by them. The platform was two hundred yards from the mine premises, and in order to reach them the miners had to pass along a public highway. The claimant's decedent was killed by being pushed from the platform in front of a train by a rush of fellow workmen who were seeking to board the train. Therefore, while the coaches were owned by the employers and the platform was repaired by them, the injury was not received by reason of any bad condition therein, and the case seems to stand for the broad proposition before stated. It would seem that the mine owners would have been liable as fully had they not owned the coaches nor had provided the platform and had control of it for the purpose of lighting and repairs. See, however, Davies v. Rhymney Iron Co., 16 T. L. R. 329, 2 W. C. C. 22 (C. A., 1900), and Walters v. Stavely & Co., 4 B. W. C. C. 89 (C. A., 1910), 4 B. W. C. C. 303 (H. L., 1911), especially Lord Shaw, pp. 305-306, and cf. Holmes v. Gt. Northern Ry. Co., (1900) 2 Q. B. 409, 2 W. C. C. 19.
It is difficult to reconcile this case with Whitbread v. Arnold, 99 L. T. 103, 1 B. W. C. C. 317 (C. A., 1908), decided six months later by the Court of Appeal, CozensHardy, M. R., sitting in both cases, in which it was held that a shepherd was not in the course of his employment under the following circumstances: In accordance with the general custom among the farmers it was a part of the contract between the farmer and those whom he engaged as farm laborers that a wagon should be sent by the farmer on the day when the servant was to begin, to convey the laborer and his family and goods from his residence to the cottage which was furnished as a part of his compensation. While proceeding in this wagon to the farm he was thrown from the wagon and killed; it was held that the employment would not commence until the deceased had entered upon his duties as shepherd.
It is not enough that the employer shall provide railway tickets where the employment is to be at a distance from the workmen's residence, but the conveyance must be one provided by the master for the sole use of servants, and upon which his servants alone, because of their service, have the right to travel. The present of the ticket is either a pure gratuity or a part of the wages paid, and the master is no more liable to one using it than he would be to a servant to whom he had given a sum to pay his car fare or to whom he had paid an additional wage because the servant lived at a distance and required the additional sum for this purpose. It is highly doubtful whether American courts will hold that servants in circumstances like that of Cremins' case are in the course of employment. The general trend of American authority is to
It is not necessary that the servant should be on his way to or from his actual labors. He is in the course of employment if he goes on the premises where his employer's business is being carried on for the purpose of preparing himself for his work, as by obtaining information as to when his work will begin at some future time,10 or for the purpose of getting pay which it is the master's duty under the contract of employment to pay to the workmen upon his premises; and this is so whether the workman is still in the master's employment or whether the relation of master and servant has entirely ceased, nothing remaining to be done except pay off the servant. 11
The general result reached by the English cases may be stated as follows: The workman is regarded as in the course of his employment when he is upon the premises upon which his master's business is being carried on, if his presence thereon is incidental to his work, and is therefore required or sanctioned by his contract of employment. The place at which the workman was injured becomes the determining factor. Nothing done outside his master's premises is in the course of employment. It is not enough that the servant be upon land owned by the master; he must be within the boundaries of those premises where the master's business is being carried on and the servant's work is to be done. 12
hold that a servant of a railway, traveling upon the train of the company on a free pass or upon a train provided by the company for its employees, is a passenger and not a workman at all unless he is obliged to travel by a train provided especially for the carrying of workmen of his class.
10 But not when a servant who has been paid off returns to the premises to complain of a supposed error in the amount. Phillips v. Williams, 4 B. W. C. C. 143 (C. A., 1911).
11 Or where he goes on the premises to remove his own tools some days after he has been discharged or has quitted the defendant's service. Molloy v. South Wales, etc. Co., 4 B. W. C. C. 65 (C. A., 1910).
Long & Co., 4 B. W. C. C. 279 (C. A., 1911). And this is so though the master has provided a path over such other land, chiefly for the convenience of his workmen to whom it provides a short cut between two highways. Walters v. Stavely & Co., 4 B. W. C. C. 89 (C. A., 1910), 4 B. W. C. C. 303 (H. L., 1911). Cf. Cremins v. Gest, Keene & Nettlefolds, Ltd., (1908) 1 K. B. 469, 1 B. W. C. C. 16, ante, note 9. See also Parker o. Pont (C. A., Oct., 1911), briefly reported in 131 L. T. J. 552.
Gilmore v. Long can be reconciled with Taylor v. Jones, 123 L. T. J. 553, 1 B. W. C. C. 3 (Ely Co. Ct., 1907), in which a farm laborer was allowed compensation for an injury received while climbing a stile on his employer's farm several fields from that where he was to work, only by regarding as decisive the fact that the place of the injury and of the work are on the same tract.
12 Gilmore v.
When a servant, employed for an extended period, has temporarily quitted his employment, with or without his master's leave, the question arises as to whether he has reëntered the employment. This question is most frequently presented in those cases 13 where sailors who have gone on shore-leave are injured in returning to their vessel. Accidents to sailors under these particular circumstances are particularly frequent for two reasons: One, their tendency to drink to excess when on shore; and the other, that in their return to the ship they are subjected to certain special risks. When their ship is in the roads it can only be reached by boat; even when it is in dock, the approach to it is usually along ill-lighted quays and over slippery ladders and insecure gangways.
A sailor may be sent ashore on a ship's errand, in which case his employment continues though not upon the vessel; 14 or, on the other hand, he may have gone ashore with leave but for some private purpose of his own, or he may have gone off without leave. In either case he temporarily quits the service, and his right to recover depends upon whether at the time he is injured he has or has not reëntered it.
A distinction is indicated, though not clearly expressed, between sailors going ashore with and without leave. In the first case he may not recover for injuries received upon the public docks or quays, nor while attempting to board a public boat hired by him to take him to his vessel. Some of the earlier cases required the sailor to have actually returned to the vessel itself, and did not regard as part of the vessel gangways and ladders, though owned and controlled by the ship and provided as a means of access thereto or
13 Arising under the Act of 1906, which, unlike the Act of 1897, provided compensation for sailors.
14 Jones v. The Alice and Eliza, 3 B. W. C. C. 495 (C. A., 1910). Here the master of a small schooner went ashore to a public house, in order, among other things, to meet and pay off a laborer who had done some work for the ship. While returning he fell off a public quay to which the boat was moored at a point some distance from it. It was held that he was entitled to compensation. See also Nelson v. Belfast Corp., 42 Ir. L. T. 223, 1 B. W.C. C. 158 (C. A., Ir., 1908), where a laborer on the public roads left his place of work and, in order to get his pay, went to the corporation offices. An injury received, while returning upon the highway, at a point far distant from his place of work was held to arise out of and in the course of his employment. This case is regarded by Judge Ruegg in his work on Employers' Liability and Workmen's Compensation, 8 ed., 372, as somewhat doubtful, and it would seem with reason, as, although the laborer was allowed to go for his pay during his working hours, his errand was at best "ancillary to his employment” and was not upon his employer's business.