Workmen's Compensation Act. Where a workman in the employ of a contractor was killed by a train when on his way home from his work he had entered upon the tracks of a railroad, which, so long as he boarded and lodged at the place where he did by his own choice at the time, "it was necessary for him to use . . . to go to and from his place of employment," it can be found by the Industrial Accident Board that the injury which caused his death did not arise "out of and in the course of his employment" within the meaning of St. 1911, c. 751, Part II, § 1.
BRALEY, J.
The undisputed material facts show that the deceased employee, while returning home at the close of the day's work, entered upon a railroad track where he was struck by a train and killed. And the question for decision is whether the injury arose out of and in the course of his employment. St. 1911, c. 751, Part II, § 1.
It is plain that if, as the record states, it was necessary for him to pass over the railroad location, it formed no part of the employers' plant; nor was it in any way connected therewith or in their control as was the common stairway used by employees in Sundine's Case, 218 Mass. 1. The contract of employment did not provide for transportation or that the employee should be paid for the time taken in going and returning to his place of employment, and when the day's work had ended the employee was free to do as he pleased. If he had chosen to use the public ways and had been injured by a defect or passing vehicle the administrator could not recover against the employer because there would be no causal connection between the conditions of employment and the injuries suffered. McNicol's Case, 215 Mass. 497. Holness v. Mackay Davis, 2 K.B. 319.
The principle is the same and equally applicable where the employee uses a private way or crosses the land of another, either as a licensee or a trespasser. The decree for the insurer was properly entered and should be affirmed.
So ordered.