GROVER C. BELL'S (dependent's) CASE.

DE COURCY, J. The plant of the Commonwealth Chemical Company, the employer, was erected near the northerly end of a large tract of marsh land, lying between the Malden River on the east, and the Boston and Maine Railroad on the west, a portion of the southerly bound touching the Revere Beach Parkway. Between the parkway and the building was salt marsh. Bell lived on the opposite side of the railroad tracks from the chemical company's plant, on Fifth Street in Wellington village. The board member, who heard the case, found: "Bell could have taken a path along the railroad tracks on the side toward the chemical company's works in a route leading directly away from his home and further by climbing up the abutment of the bridge reach the Revere Beach Parkway and then gone at right angles on the bridge over the tracks, and then along the other side of the railroad tracks toward the direction of his home until he came to the dead end of Fifth Street and thereby reach his home. At times it was physically possible to have crossed the stretch of marsh land adjacent to the Chemical Company's plant and thereby reach the

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Revere Beach Parkway. Both of these routes, I find, were impractical and dangerous." There was a driveway from the northwesterly corner of the employer's premises along a right of way parallel with the track, and leading to a gate at the side of the railroad location a short distance north of Wellington station and opposite the dead end of Fifth Street. At this place there were planks between the rails for the passage of teams over the railroad, and gates on both sides of the tracks which were kept locked part of the time.

When Bell entered the employ of the chemical company in February, 1917, the superintendent accompanied him, and took him over a route from the railroad station platform, near Fifth Street, across the inbound and outbound passenger tracks, to a platform, then to the southerly end of that platform, and across the outbound freight track, to the above described way at the northwest corner of the employer's premises. "The testimony further showed that the employees of the said company who lived in the direction Bell resided took the same route that he was taking the day he first went to the chemical company's works and thereafter used until the day of his injury." Bell was following it, on his way home from work on the morning of June 8, 1917, when he was struck by a train and fatally injured. The Industrial Accident Board on review, made the additional findings, that the practice of using this route "was well known both to the subscribers and to the Boston and Maine Railroad, no objections thereto having" been made by either the chemical company or the railroad; . . . the employee used this route twice a day in going to and from work; and the superintendent for the subscribers knew that he had used this route, by observation, on many occasions."

The scope of a workman's employment is not strictly confined within the time that he is actually engaged at his specific work. The protection of the compensation act attends him while he is on the employer's premises and doing what is necessarily incident to his work. "Without attempting to lay down any hard and fast rule as to when the employment begins and ends, for the purposes of the compensation act we have held that the employee was within the scope of his employment while making his exit from the employer's premises at the end of his day's work. For

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instance, in Stacy's Case, 225 Mass. 174, the pond which the employee was crossing on the ice on his way home, was "the premises of his employer." In O'Brien's Case, 228 Mass. 380, the workman had started to go home, and was descending a stairway on the outside of the factory building when he was injured. In Sundine's Case, 218 Mass. 1, although the common stairs on which the employee was injured remained in the control of the landlord, the employer and his employees had a legal right to use the stairs, which were the only means available for going to and from the workshop on the fourth floor. See also Hallett's Case, 232 Mass. 49; White v. E. T. Slattery Co. 236 Mass. 28, 34. On the other hand accidents which happen to an employee on his way home from work, but not on the employer's premises, as a rule are riot regarded as arising in the course of his employment. Ordinarily he has then ceased to be engaged in his employer's business, and is not doing anything he was employed to do. Donahue's Case, 226 Mass. 595. Rourke's Case, 237 Mass. 360. If he is injured on the public street, he does not come within the benefit of the act, unless his work is of a kind which is pursued on the highway and he is engaged at the time of the accident in the actual work for which he is employed, and not merely using the highway in the exercise of the public right of passage. Keaney's Case, 232 Mass. 532.

In the present case, the employee Bell had ended his night's work, and had left the employer's premises. He was his own master. The Industrial Accident Board found and ruled: "Decedent's employment relation, under his contract of hire with the subscribers, began at the time he left the public highway and entered the railroad right of way abutting the premises of said subscribers as a licensee by reason of his employment by the Commonwealth Chemical Company, on his way to work, and did not terminate until he left the railroad tracks to enter the public highway upon his return home from work." So far as this is a ruling of law, it is apparently based upon decisions under the English act, which hold that employment continues until the employee reaches a public road. Longhurst v. John Stewart & Son, Ltd. [1916] 2 K B. 803. Our statute never has been so construed. So far as the statement of the board is a finding of fact, it is not supported by the evidence. In crossing the railroad tracks the

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employee was a mere licensee, if not a trespasser. Lynch v. Boston & Maine Railroad, 226 Mass. 522. He may have been criminally liable under the railroad law. St. 1906, c. 463, Part II, § 232. Wright v. Boston & Albany Railroad, 142 Mass. 296.

Whatever right he or his employer may have had to use the grade crossing at the end of Fifth Street, where precautions were taken for the protection of those using it and of the trains, the board was not justified in their finding that "there is no question in this case as to the employee's right, as one of the workmen employed by the subscribers, to enter and cross the railroad at the place where the injury occurred." The employer could not confer upon its employees the right to cross the railroad location, nor did it assume to possess or confer any such right. See John Stewart & Son, Ltd. v. Longhurst, [1917] A. C. 249; Charles R. Davidson & Co. v. M'Robb, [1918] A. C. 304, 331. In Fox v. Rees & Kirby, 115 L. T. Rep. (N. S.) 358, cited by the board, the railway on which the accident occurred was a private one, leading to the works where the workman was employed, and it was a recognized and regular way used by the workmen by permission of the owners. In the present case, admittedly the general public had no right to cross the railroad track at the place of the accident. The chemical company acquired no such right for its officers, employees or others. Bell's contract of employment did not provide that he was to be considered in the employer's service while crossing the railroad tracks in going from the factory to his home. No such term can be read into the contract by implication, based on the failure of the chemical company to provide other ways to and from the factory that were convenient and safe. It is not to be inferred that the company assumed to give Bell a right to cross the railroad location which its own officers could not use except as trespassers. In short he acquired no such right from his contract of service.

It follows that the employee was on his own business, and not that of his employer, wheh he was injured on the railroad track. His contract did not contemplate, nor was he in fact engaged in, any service for the employer at that place. The risk from which he suffered was not a risk of his employment. The train which injured bim was not owned by the chemical company, and was not connected with its business, nor with the work for which Bell

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was employed. The case is not distinguishable in principle from Fumiciello's Case, 219 Mass. 488, where the employee was killed by a train when on his way home from work. We are constrained to say that the board were not warranted in finding that the employee's injury arose out of and in the course of his employment, within the meaning of the workmen's compensation act.

It is recited in the decree that the court ruled it "had no function to perform except to enter a decree" in accordance with the decision of the Industrial Accident Board. This was erroneous. As was said in Brown's Case, 228 Mass. 31, 38, "When copies of the decision of the board and all papers in connection therewith have been transmitted to the Superior Court, it is the duty of that court to take such action and make such a decree as the law requires on the facts found by the board. It is for the Superior Court to determine what order or decree ought to be made on the facts found. It has jurisdiction over the case in the same way and to the same extent that it has for example in a suit in equity where the facts have been found by a master. This was fully set forth in McNicol's Case, 215 Mass. 497."

Decree reversed.