Evidence and findings by the Industrial Accident Board in a workmen's compensation case supported a decree awarding compensation to the dependent of an employee of a town's highway department who, while driving a town truck loaded with gravel to a storage place as directed by his superior, was fatally injured when the truck was struck by a railroad train on a grade crossing.
CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the workmen's compensation act.
The case was heard by De Saulnier, J.
Charles F. Choate, for the insurer.
Alphonse S. Bachorowski, for the claimant.
WILKINS, C. J. The employee, a member of the highway department of Chelmsford, was fatally injured on March 12, 1954, when the town truck he was driving was struck by a railroad train at a grade crossing in the town. At the time, as ordered by his superior, he was transporting pea stone, which had been purchased by the town, from the seller's premises to a gravel pit for storage. The reviewing board affirmed and adopted the findings and decision of the single member awarding compensation to his dependent widow. From a decree of the Superior Court awarding compensation, the insurer appealed.
Succinctly stated, the single member made these findings. The employee's death arose in the course of his employment. His injury "arose out of his employment, since the nature, incidents and obligations of his contract of employment
viewed in all its aspects necessarily brought the employee in contact with the risk which in fact caused his death, and his work necessitated his being where he was when fatally injured," citing Caswell's Case, 305 Mass. 500 ; Souza's Case, 316 Mass. 332 . The deceased's conduct in operating the truck at between seven and ten miles an hour would at worst have been negligent even if in violation of G. L. c. 90, Section 15 (as amended through St. 1951, c. 557). Moreover, if "the deceased assumed a hazard because he may have been in violation" of Section 15, such "was not one assumed outside the scope" of his employment, and "even if the deceased's conduct could conceivably have been found to be serious and wilful" compensation would not be barred to the widow, by virtue of G. L. c. 152, Section 27 (as amended through St. 1935, c. 331), where the injury resulted in death, citing Hamel's Case, 333 Mass. 628 .
The reviewing board was not required to find that the deceased's conduct was in violation of G. L. c. 90, Section 15, as amended. Many of the cases relied upon by the insurer can no longer be cited for the proposition that the deceased was acting in violation of law. See Borden v. New York, N. H. & H. R.R. 339 Mass. 266 , 269-270. It is not of consequence to determine whether as matter of terminology the employee's death was, or was not, due to an injury "arising out of an ordinary risk of the street." See G. L. c. 152, Section 26 (as amended through St. 1945, c. 623, Section 1). His place of employment at the time of his injury was where he was, whether it be a public way, private way, or railroad right of way. Egan's Case, 331 Mass. 11 , 14. We observe no error of law in the findings of the board, which are supported by the evidence.
The final decree is affirmed and costs and reasonable expenses under G. L. c. 152, Section 11A, inserted by St. 1945, c. 444, as amended, shall be allowed by the single justice.