author: Pee Ctjeiam.

text:
    ROURED BIANCHI, APPELLEE, v. HENRY RICKER ET AL., APPELLANTS.
    Argued March term 1925
    Decided August 26, 1925.
    Negligence — Motor Vehicle Collision With a Parked Truck at Night Without Lights — Case Properly Submitted to Jury— Measure of Damages Properly Before Jury on Testimony of Dealer Who Examined Car Before and After Accident— Ruling of Court Sustaining Objections to Questions Sustained.
    On appeal from the Bergen District Court.
    Before Justices Trenohard, Minturn and Lloyd.

      Eor the appellants, Edwards & Smith*'■>

    For the appellee, John J. BresUni■

   Pee Ctjeiam.

The suit was brought in the District Court of Bergen county ancl heard without jury, and the judgment was for plaintiff for $500.

The action was for damages to plaintiff’s car, caused by a rear-end collision with defendant’s truck, which it was alleged was negligently parked without lights.

The first contention is that there was error in the refusal of the nonsuit or direction on grounds of no negligence in defendant, and contributory negligence in plaintiff. We think this was correct, as the question was one of fact.

The plaintiff testified that he was driving his Dodge coupe on the right-hand side of a sixty-foot road, on a dark and foggy night, between six-thirty and seven o’clock, at a speed of from twelve to fifteen miles an hour; that his lights were dimmed, and he could only see fifteen feet ahead from where he was seated, which was five feet from the front of his car; that he could not stop his car within fifteen feet at the speed at which he was going; that while so proceeding he met defendant’s truck, tried to stop or turn out. but defendant ran right into him. On cross-examination, he said the truck was alongside the cuib, but he did not see it in time to stop or trim out. Plaintiff was the only witness who saw the collision. From plaintiff’s witnesses, on the scene after the accident, it appeared that both cars were headed west, the truck alongside the curb, and that plaintiff’s right front was damaged by colliding with the left rear end of defendant’s truck. •

Under .our decision, the case was properly for the jury. Dickerson, v. Mutual Grocery Co., 2 N. J. Adv. R. 921; Bridgen v. Pirozzi, 97 N. J. L. 535.

The defendant next contends that there was no competent proof as to the reasonable value of the plaintiff’s car, before and after the accident-, or the reasonable cost of repair.

The plaintiff alleged in his complaint by way of damages that he was compelled to expend a considerable sum of money to have his car repaired. A witness, for the plaintiff, who was an auto salesman, appraised the car at $850 the day before the accident, and he, together with the president of his concern, examined the car shortly after the accident and offered the plaintiff $200 for it. This testimony presented a reasonable basis for a conclusion.

The next ground of appeal is that the court sustained objections to certain questions. Plaintiff’s witness, a policeman, was asked on cross-examination: “Q. Why did you walk around to the back of the truck?” An objection that this question called for a conclusion was sustained. The defendant’s point is that it was proper to test the credibility of the witness. The question was irrelevant and immaterial, and was, in fact, answered later when the witness testified that when he went to the rear of truck he looked for lights and the damage. The plaintiff was asked, on cross-examination: “You don’t know the exact time when this accident happened ?” It was objected to on the ground that the question was already answered, and this, we think, was properly sustained. In answer to preceding questions, the witness testified that the accident happened “near seven o’clock:” again, that “it was over half-past six, sureagain, “between half-past six and seven:” again, “it was after half-past six.”

The plaintiff testified, on cross-examination, that the road was sixty feet wide, and that defendant’s truck was alongside the curb.

“Q. Were you going alongside the curb or away from the curb ?

“A. I was in the center of the road.

“Q. And why didn’t you keep on going instead of turning into the truck?”

f It was objected that the question called for a conclusion and was speculative, and this objection was sustained.]

“Q. And did yon continue right in the center of the road all the way until you struck the truck ?

"A. Yes, sir.

■“Q. How do you account for that? The truck was at the curb?'

"A. I could not see the truck the' way the condition is.”

Quite apparently, this line of testimony was entirely-argumentative, and it was discretionary with the court to allow it.

The judgment will be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOHN SARGEANT v. MARY FEDOR AND MICHAEL FEDOR.
    Decided August 26, 1925.
    Slander — Husband's Liability For Wife’s Torts — Slander Not Uttered in Husband’s Presence Not at His Command — At Common Law Husband- and -Wife Jointly Liable — General Property Acts Do Not Change by Implication, the Husband’s Common Law Liability For Wife’s Torts Not Growing Out of the Conduct of Her Own Business nor the Management of Her Separate Property — The Tort in Question Not Excepted by Statute.
    On appeal from the Bergen County District Court.
    Before Justices Trenchatcd, Minturn and Lloyd.
    Por the plaintiff-appellee, Feder & Binzler.

    For the defendants-appellants, Weinberger & Weinberger.

   Per Curiam.

This action was tried by the court, without a jury, resulting in a judgment for the plaintiff against both defendants-for $100. Then action was brought against the defendants, husband and wife, for alleged* slander by the defendant wife as follows: “He [the plaintiff] stole a piano; he is a thief.” The contention is that error was committed in the refusal to direct a verdict in favor of the defendant husband, inasmuch as the court found that the' slander was the wife’s voluntan' tort, not uttered in the husband’s presence nor at his command. At common law the husband was jointly liable for the voluntary torts of his wife, and this rule has not been abrogated in this state by express statute,

By the weight of authority the general property acts relating to married women do'not change by implication the husband’s common law liability.for his wife’s torts. 13 R. C. L. 1233, § 268; 30 Corp. Jur. 787, § 417; 27 A. L. R. 1218, note; Ann. Cas. 1915, D 1206, note. Nor the common law rule that one spouse may not sue .the other in tort. 29 A. L. R. 1482. But since the passage of the married woman’s acts, a husband is not liable for the torts of his wife, growing out of the conduct by her of her own business or arising from the management by her of her separate property. Harrington v. Jagmetty, 83 N. J. L. 548.

This tort in question, however, is not included in the statutory exceptions in this state, and the husband’s liability, therefore, persists, viz., that punitive damages may he assessed against the husband, though he in no way participated in the wife’s tort. 13 R. C. L. 1237, § 273. Some states take a contrary view. Price v. Clapp, 105 S. W. Rep. 864, Ann. Cas. 1913 D 998. But since the common law rule of liability is adhered to in this state, as against the husband, the consequent rule of common law damage is equally applicable.

The judgment will be affirmed.


text:
    JOHN EANNETTA, ADMINISTRATOR, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY.
    Decided August 26, 1925.
    Negligence — Death From Injury While Employed by a Construction Company at Work Along the Right of Way of Railroad Company — Injury Result of Defective Working of a Crane on Car of Railroad Company Operated by Railroad Employe — Question of Responsibility of Railroad — Crane Alleged to Have Been Unsafe, Also That Employe Was Negligent — Complaint Held Insufficient Regarding First Point, But No Error Found In Action of Court In Submitting Question of Negligence of Railroad Employe to Jury — Judgment For Complainant Affirmed.
    On. rule to show cause.
    Before Justices Trench \rd, Mixtuéx and Lloyd.
    For the rule, Frederic B. Scott.

      Contra, Alexander Simpson.

   Per Curiam.

The action was brought in the Hudson County Circuit Court, to recover damages for the death of Albert Eannetta, against the Delaware, Lackawanna and Western Eailroad Company. The accident happened by reason of the toppling over of a crane which was being used to lift a steam shovel from the ground to place it on a work train. The deceased was employed by the Hyde-MacF'arlane Construction Company which had been digging along the right of way of the defendant, and it became necessary to have the shovel changed in its position, and for that' purpose the work train was called for by the construction company, and furnished by the defendant. The original complaint in the case rests upon the theory that the defendant had furnished for the purpose an unsafe and improper crane. The case proceeded to trial, however, upon a double theory, the failure of duty to supply the proper crane, and negligence of the railroad company’s employe in the handling of the crane, and the trial judge submitted the issue to the jury solely on the latter ground. The court, in Ills charge to the jury, stated; “Now, if you find from the evidence that this crane, at the time it fell, was not being operated by the railroad company, then, of course, there can be no recovery against the railroad company.”

It is contended in support of the rule (1) that the complaint was insufficient to constitute a cause of action against the defendant; (2) that the court erred in submitting the e,ase to the jury on the theory of negligent operation, on the ground that such negligence was not within the issue of the pleadings; (3) that there was no proof that the railroad was in control of the operation of the crane; (4) that there was no proof of negligence in those handling the crane; (5) that the court erred in refusing to permit a witness to testify concerning a bill of the railroad company presented to the construction company for damage to the crane.

We think it. is true that the complaint fails to allege negligent operation in the defendant as a cause of action, and to that extent that point is established. It does not follow, however, that under the second point that the court erred in submitting to the jury the question of the negligence of the defendant in the operation of the crane. Such evidence as there was of negligent operation came in without objection on the part of the defendant, and on the motion for a nonsuit, which was repeated on the motion for a direction, defendant’s counsel stated the grounds to be “that the proof in this case is that the operation of the crane at the time was by a servant of Hvde-MacEarlaue Company, and for that reason, the responsibilities of the defendant had ceased. In this particular ease, Uyde-M'acFarlaue would be covered by the Compensation act; further, that there is no proof of the allegation in the complaint that the crane was a defective crane.” There is nothing in these grounds which raise the question of the insufficiency of the complaint, or of the proofs being beyond the allegations set forth in the complaint. On the contrary, it assumes the facts such as proved to be within the pleadings, because of the fact that thej1- were received without objection, and not made the basis of a nonsuit or direction.

•As to the charge of the court in which the issue was specifically committed to the jury, no objection or exception was taken. It is a case in which the pleadings, if necessary, should be moulded to conform to the issue actually tried, and that the verdict should not be sustained on this ground. Cresci v. Gandy, 2 N. J. Adv. R. 486.

In other words, wo think counsel cannot permit an issue to be raised, presented to the jury in evidence, submitted to the jury by the trial judge, all without objection, and then on a rule for a. new trial, complain that the pleadings were insufficient to sustain the verdict. Consensus tollit enorem. Levinson v. McQuade, 93 N. J. L. 184; Van Houten v. Van Houten, 89 Id. 301.

The next contention is that there was no evidence showing that the defendant railroad company was in control of the operation of the crane, We think this ground also is untenable. The man in charge of the crane was an employe of the defendant, named Yanderhoof, who was in actual control of its physical operation; his -services were paid for by the defendant, and he had control of the methods to be pursued. If he attempted to raise the shovel by a method which implied negligence in operation, and by using equipment inadequate for the purpose through negligence, the defendant would be answerable. ITis own testimony on this point would seem to establish both of these propositions. It was his business to do the work which he was doing in this instance. lie had testified that cranes for such purpose had what is called an outrigger, evidently a counterbalance intended to offset the weight of the material or object to be lifted, and- in this instance, he was operating without such balance: that he was an experienced man in the business, and that he had on other occasions lifted other objects and materials in the same manlier. He seems also to have known the lifting capacity of the crane, which was thirty-five tons. In addition it was shown that at the point at which the shovel was being lifted the crane was tilted out of a horizontal line and inclined toward the shovel. This was an element in operation, and not in equipment. It was quite clear .that with a sufficient departure from a level line the crane would tip of its own weight. It was the duty of the operator in charge to determine the proprietjr of using the unbalanced crane under these circumstances, and if he negligently attempted to perform the service, we think that fact presented evidence of negligence, and in this case there was such proof.

It is true that Vanderhoof said that he took liis instructions from Cooper, the engineer of the Hyde-MacFarlane Company, but it is also true that on cross-examination he made statements from which it might he inferred that he was using his own judgment. In view of the fact that Va.nderhoof was in the employ of the railroad company, that he was being paid by it, and that he was to take the shovel from the point where it was to another point on the railroad, it was permissible for the jury to find that it was while the .machine was in his control as an operator for the railroad that the accident occurred.

The next point is that the evidence fails to show any actionable negligence. This is answered by what has already been stated.

The final reason is that the court refused to allow a question directed to a Mr. TDurell, an employe of the contracting company, as follows: “Q. Mr. Dnrell, I show you a hill made out to the Hyde-MacFarlane Company and ask you if you brought that from .Hyde-MacF’arlane Company’s office? A. I did. Q. Can you tell us what that bill Is for?” This question was objected to and the objection sustained. We can see no possible materlalitv, relevance or competency in the inquiry.

The rule is therefore discharged.


author: Pee Cueiam.

text:
    SAMUEL GARRISON v. HORACE E. LANE.
    Argued March term, 1925
    Decided May term, 1925.
    Contracts — Statute of Frauds; — Where Owner of a* Building in Course of Construction Agrees With a Subcontractor to Pay the Debt Due Him From the Contractor Who Has Abandoned the Job If He Will Complete His Work, the Agreement Does Not Have to be in Writing — The Contract to Complete the Work Becomes a New Contract.
    Before Justices Teenciiakd, Mintuen and Lloyd.
    For the appellant, Francis J. Smith.

    For the appellee, D. Trueman Stackhouse.

   Pee Cueiam.

This action was tried in the District Court of Camden, without a jury, and resulted in a verdict for $355 in favor of plaintiff, from which defendant appeals. Some of the items recovered are not involved in this appeal.

The defendant employed a builder named Bittle to erect a house. Bittle engaged the plaintiff to do the plaster work for $360. After the plaintiff had performed some of the work, the relations between the defendant and builder were terminated. The defendant then orally agreed with the plaintiff that if the plaintiff would complete the work the defendant would pay him not only the cost of completing it, but also the amount due him from Bittle, which two sums totaled $360.

After the plaintiff started performance of this oral agreement, the defendant requested a written estimate of the cost of completion of the work, whereupon such estimate in the sum' of $100 was given him by the plaintiff. From this evidence a jury could find, as,the court, in effect, did find, that the oral agreement was the complete contract, and that the estimate was only something done under or in furtherance of the terms of the oral agreement, and that the estimate was not given for tile purpose of reducing the whole agreement to writing, but for the purpose of satisfying a request of the defendant. The main contention, however, is that the promise of defendant was to answer for the debt or default of another, and as such' should have been in writing under the statute of frauds in order to validate it. It is settled, however, that where the owner of a building, on which the contractor has abandoned work, promises to pay the contractor’s workmen what is due them if they will prosecute the work, the undertaking becomes ipso facto an original contract, and not within the statute. Kutzmeyer v. Ennis, 27 N. J. L. 371; Mulholland v. Jones, 83 Id. 607; 27 Cyc. 160, and cases.

Such was the situation here and the judgment will therefore be affirmed.


author: Per Curiam:

text:
    OCEAN GROVE CAMP MEETING ASSOCIATION v. BOARD OF EDUCATION OF THE TOWNSHIP OF NEPTUNE.
    Submitted July 6, 1925
    Decided August 21, 1925.
    Pleadings — Application to Mould Denied.
    On application for certiorari, &c.

    Before Justices Tren chard and Katzenbach.
    For the applicant, Augustus G. Sluder, Jr.

   Per Curiam:

An application for a writ of certiorari having been denied by this court, a further application was made to mould the pleadings as set forth in the correspondence filed herewith. After due consideration of snch application this court is of the opinion that it must bo denied, and it is denied accord-


author: Campbell, J.

text:
    CHESTER A. LE ROCKER, PROSECUTOR, v. BOROUGH OF BOGOTA, RESPONDENT.
    Decided August 21, 1925.
    Taxes and Assessments1 — Assessment of Benefits — Street Improvements — Should Report of Assessment Commissioners be Confirmed by Circuit Court or by Mayor and Council— Statutes Conflicting, but Carefully Examined — Held, That if the Hearing was Under a Writ of Certiorari, the Finding Would be That Confirmation Should be by the Mayor and Council Notwithstanding the Proviso of 1925, but as it is on a Rule to Show Cause, and the Question is a Fairly Debatable One, the Writ Should be Allowed — Whether the Commissioners Examined the Work Prior to or Subsequent to Hearing, Immaterial, but the Question May Also be Argued on the Writ.
    On rule to show cause why a writ of certiorari should not issue.
    For the prosecutor, Messrs. DeTurck & West.

    For the respondent, Benjamin B. Buffet.

   Campbell, J.

This matter is before me on a rule to show cause allowed by me, why a writ of certiorari should not issue to review an assessment for the improvement of Palisade avenue, in the borough of Bogota, and a resolution of the mayor and council confirming such assessment

The matter is presented upon a stipulation of facts, which facts are as follows:

By an ordinance approved July 10th, 1923, Palisade avenue, including that portion thereof in front of prosécutor’s property, was improved by repaving, &c. The contract for the work was awarded August 28th, 1923, and the improvement completed November 27th, 1923.

On February 14th, 1924, the governing body of the borough, pursuant to section 14, article 20, of the Home Rule act of 1917, as amended and supplemented, notified the assessment commissioners of the completion of the work of improvement and requested the making and levying of assessments for benefits accruing from such improvement. Pursuant to •statute the commissioners of assessment fixed June 13th, 1924, at the borough hall, as the time and place for hearing persons in interest, and such meeting was held at such time and place.

The assessment commissioners filed their report of assessments with the mayor and council, such report bearing date May 29th, 1925, ■ and such report and the assessments returned thereby were affirmed by the mayor and council June 1st, 1925.

Only two questions are involved:

1. Should the report of the assessment commissioners as to their assessments for the improvement of Palisade avenue have been confirmed by the Bergen County Circuit Court, or was it and the assessments properly confirmed by the mayor and council.

2. Were the proceedings of said assessment commissioners, as set forth in their report, and the report of their proceedings, irregular and illegal, in that it does not appear in said report that they examined said work and viewed all lands and real estate in the vicinity of said local improvement, benefited by such improvement, prior to the hearing of persons interested'on June 13th, 1924.

The solution of the first question rests upon the interpretation of Pamph. L. 1925, ch. 71, amending sections 27 and 30 and other sections of the Home Eule act of 1917, and repealing the amendment of 1924 {Pamph. L. 1924, c7&..228), and, for this purpose, a history of the Home Eule act is necessary.

So far as the present matter is concerned sections 14, 27 and 30 of article 20 are the only ones requiring attention.

The original Home Eule act is Pamph. L. 1917, § 14, ch. 152, seems to stand unchanged by amendment or supplement.

Sections 27 and 30 were amended by Pamph. L. 1924, ch. 228, and this act in turn was repealed by Parnph. L. 1935, ch. 71.

Sections 14 provides that upon the completion of any local improvement the board or body having charge thereof shall immediately notify the officer or board charged with the duty of making assessments for benefits, and request the making of assessments, and also provides that the board or'body having charge of making such improvement shall furnish the assessing officer or board, in detail, the cost o£ such improvement.

Section 27 of the original act provides, among other things, that upon the making of such assessments the assessing officer or body shall make a report in writing to the governing body, and that body shall then proceed to confirm or otherwire dispose of the assessments so- reported.

The amendment of 1924 (Parnph. L. 1924, ch. 228) so changes section 27 as to provide that upon completing the assessments the assessing officer or board shall certify them to the Circuit Court of the comity in which the municipality is situated, for proceedings to he had thereon by that court looking toward confirmation of such assessments.

Section 30 of the act of 1917 provided, amongst other things: “Every assessment for local improvements of any kind, together with interest thereon * * * shall, upon confirmation of the same by the governing body, be a first and paramount lien upon the lot of land described in said assessment * *

The amendment of 1924 (Pamph. L. 1924, ch. 228) caused file language to be: “Every assessment for local improvements of any kind * * * shall upon confirmation of the same by the Circuit Court of the county in which such municipality is situated be a first and paramount lien upon the lot described in such assessment * *

The amendment of 1924 was approved March 12th, 1924, and the amendment of 1925 was approved March 12th, 1925, so that when notice of completion of improvement was given to and requests to make assessment was made upon the assessment commissioners on February 14th, 1924, the sections of the original act were in effect; when the meeting to hear objections was held June 13th, 1924, sections 27 and 30 had become' amended, and when the report of assessments was made, May 29th, 1925, the amendment of 1924 had been repealed and the sections as they originally stood were again effective unless the situation- and proviso in the repealer of 1925 brought about a different result.

The proviso in the repealing act of 1925 is: "Provided, however, that the repeal of said act shall not operate to vacate, impair or in anywise interfere with any proceeding or proceedings instituted pursuant to the provisions of said act, and all such proceeding!. shall be continued and concluded in the manner in said act directed.”

But for this repealer the report and assessments would have been made and returned to the Bergen County Circuit Court, which tribunal would have dealt with the question of confirmation. -The purpose of the repealing act was to place this duty, power and function back in the governing body of the municipalitj', where it resided under the terms of the original act of 1917. Had the report been made at any time prior to March 12th, 1925, there could be no difficulty in determining that by force of the proviso in the repealing act the proceedings before the Bergen County Circuit Court, upon confirmation, would continue to a conclusion, irrespective of the repealer. As the report was made subseqirent to the repealing act becoming •' effective, it is necessary, in order to construe the proviso to mean that such report should nevertheless have been made to the Circuit, and the proceedings on or about confirmation proceed therein, to find and hold, that by "proceeding” in the proviso, the legislature intended to designate and consider the making of the assessments and the confirmation thereof one single proceeding, that is, from the request to make the assessments to the confirmation thereof was one single, indivisible procedure. I am not inclined to place such a construction upon the language employed in the proviso to the amendment. If I were hearing the matter under a writ of certiorari I would hold that the filing of the report and assessments with the mayor and council of the borough, and the confirmation of the assessments by that body was proper, notwithstanding the language of the proviso in the repealing act of 1925. But this matter is before me upon a rule to show cause, and the question is a reasonably and fairly debatable one, and therefore the writ should be allowed.

The other question, in the absence of facts showing that the assessment commissioners examined the-work and viewed the lands and real estate in the vicinity of the improvement benefited by the improvement subsequent to the calling of the meeting to hear parties interested instead of prior to calling such meeting, T should also have to decide against the contentions of the prosecutor.

As to this matter there is nothing before me other than the language of the report of the commissioners, and that makes the situation contended for by no means certain. Section 20 of the act of 1917, requiring the commissioners to examine the work and view the lands is itself not perfectly clear as to the order of the proceeding in point of time. The language, so far as pertinent, is: “The officer or board charged with the duty of making assessments for benefits, when notified of the completion of a local improvement, shall examine the said work and view all lands and real estate in the vicinity of said local improvement benefited by said improvement. Said officer or board shall thereupon fix a time and place for the hearing of all persons interested.” Whether the examination and view must precede the giving of notice of the meeting or may follow it may give rise to some doubt. The sensible view must be that the examination and view must precede the actual holding of the meeting. So long as the examination and view of the lands proceeded the meeting to hear persons interested, I think it would be a matter too immaterial to warrant a review of the assessments whether the examination and view proceeded or followed the giving of notice.

As mv finding upon the other question leads to an allowance of the writ, this point can also be raised and argued as a reason under said writ.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ABNER PHILLIPS, PETITIONER, v. SAMUEL KRAVITZ, RESPONDENT.
    Permanent or Temporary Injury — Extent—Intoxication Alleged and Denied — Alleged Intimidation of Respondent’s Witness— Failure to Submit to Doctor's1 Examination.
    For the petitioner, Sol Phillips Perlman.

    For the respondent, Henry II. WUtstein.

   This is a workmen’s compensation case in which the fact of the accident is admitted, but in which there is dispute as to the temporary disability and permanent injury experienced ¿md the previous condition of the petitioner. The question of intoxication is also raised,, and the claim is made that the respondent’s witnesses were approached and have been intimidated.

Regarding the temporary disability, the respondent testified the petitioner applied for work in the month of June, whereas the petition’s claim is that he was disabled until October.

The testimony also shows that the respondent directed the petitioner to report to a doctor for examination, but that he refused to permit of the examination which the law privileges the. employer to have made. No compensation can be allowed for this period of refusal.

Concerning permanent injury, it is to be noted that whereas the doctor who testified for the petitioner is of the opinion that he is twenty-five per cent, totally disabled, the doctor for the respondent insists that he can find nothing the matter with the petitioner beyond the condition which is to be expected in a man of his age.

With respect to the petitioner’s previous condition, there is evidence to show that he had had two- -previous accidents, either one oí which might he responsible for the disability of which the petitioner now complains.

Concerning the question of intoxication, the respondent contends the petitioner was habitually under the influence of liquor to the extent of being “happy drunk.” The petitioner asserts he never drank. A witness for the respondent who went with the injured man in the police ambulance to the hospital testified that he took a bottle, half full of some kind of liquor, from the petitioner’s pocket. This witness, it is .claimed, had previously told the respondent that the petitioner was drunk when he fell through the second story loft door. On the stand he refused to corroborate this, but did reluctantly admit that he smelt something on the injured man’s breath while accompanying him in the ambulance. Two other witnesses also failed to testify that the petitioner was drunk at the time of the accident, which evidently was the purpose, for which they were subpoenaed by the respondent, who claims they were heard to make this assertion.

Concerning the contention that the respondent’s witnesses had been intimidated, it is to be noted that three persons whom the respondent put on the stand for the purpose of ■proving intoxication failed to testify as he expected, and at least one of these, a woman, admitted that the son of the petitioner came to her and intimated what would happen if she told the truth. This was not upset in rebuttal, and, if true, is important as indicating the petitioner was conscious of something which it was necessary to hide. It would seem that some recognition must necessarily be taken of so serious a situation, rendering questionable the standing of the petitioner’s entire case. This, coupled with the statement of the petitioner that he never drank and did not have whiskey in his pocket, whereas there is much in the testimony to the contrary, makes it necessary to weigh the statements of the Jitigaiits as to credibility. With this in mind, together with the complete disagreement of medical testimony, I am forced to the conclusion that an award can be given in favor of the petitioner only for five per cent, of total disability and for compensation to cover temporary disability from May 5th, 1933, ten days’after the accident, to the last of June, 1933, "during which month the petitioner applied to the respondent for 'work according to the latter’s statement, from which period must be deducted the twenty-four days during which the petitioner refused to be examined.

In view of the doubtful■ status of this claim as already set forth, I am of the opinion that counsel for the petition should be paid by -his client.

A rule for judgment will be drawn up in conformity with the above.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JULIA RADASOCKY AND NICHOLAS RADASOCKY, INDIVIDUALLY AND AS GUARDIANS OF MARY RADASOCKY AND HELEN RADASOCKY, PETITIONERS, v. COLUMBIA SALVAGE CORPORATION, DEFENDANT.
    Skylarking Alleged — Minor Employe Died From Injuries Resulting From Explosion of Percussion Caps — Injury on Federal Government-owned Property — Alleged Contract Withdrawing Limits of Workmen’s Compensation Act From Contract of Employment — Compensation Allowed.
    Eor the petitioners, George J. Plechner and Hans M. K. Hansen.

    Eor the respondent, Slamler, Stamler £ Koestler.

   ;¡c >;< }Jt ;J: >]: :¡; >;< :j; i¡s

Respondent, Columbia Salvage Corporation, on and for some time prior and some time subsequent to September. 31st, 1922, was engaged in salvage work on the government reservation known as Raritan Arsenal, in the township of Raritan, county of Middlesex and State of New Jersey.

Nicholas Radasocky, on and' for some time prior to September 21st, 1922, was employed by the Columbia Salvage Corporation, said respondent, as a laborer and hi the course of Ms employment, it was his duty,' among other things, to explode the primer caps, parts of certain types of brass cartridges.

The work in which the said Nicholas Radasocky was engaged at the time of the accident was part of; the work incident to salvaging seventy-five millimeter shells. The shells were first delivered at a large table, at which the work known as ‘'breaking down” was done. This consisted of removing the projectile, 'the powder and in some cases the obturator. ,’Efom Ibis table the cartridges were then sent down a con.veyor to the table where Nicholas Rádasocky was working. His part of the work was to fire off the priming cap in the head of said cartridge, using for the purpose a chisel, and striking it wítlí a hamiaer.

On September 21st, 1922, the said Nicholas Radasocky, while engaged in the act of exploding the primer cap in one of said cartridges, was fatally injured by reason of the fact the said cartridge was a loaded one and because of the injuries inflicted upon'him Ivy said explosion, lie died on September 23d, 1922.

'Three defenses are set up by the respondent as follows:

1. That the injuries sustained by Nicholas Radasocky, and which resulted in his death, were caused by skylarking or horseplay oh the part of a fellow-employe named Green.

2. That at the time of his employment the said Nicholas Radasocky signed an agreement with the respondent that section 2 of the "Workmen’s Compensation act’ should not apply, but section 1 of the "Workmen’s Compensation act should obtain.

3. That the accident occurred on property purchased by the United States government, to be used as an arsenal, exclusive jurisdiction over which was coded to the United States government by the State of New’Jersey by an act of the legislature, passed in 1921, and for that reason this court had no jurisdiction to hear this case, but said action should have been brought in the federal court.

I will take up these ■ alleged, defenses in their respective order.

•Petitioners contend.that ;the injuries and death arose out of and, in the course-,of-the .employment, while respondent contends-that-the., accident was. caused by skylarking..and horseplay,

Respondent produced- a witness, one Thomas Gorman, in order to, establish its, contention in this respect. A careful analysis, of■,the testimony ,of,,Thomas. Gor.m.an leads, me to the conclusion that he did not see any act committed by anyone, which caused the- depth of the said Nicholas Radasocky. The .testimony is contradictory,. imaginative, inconsistent, improbable and incredible and his testimony, cannot be given any weight.-

The testimony .of Drv.Emmons, a witness produced by respondent for the purpose of endeavoring to show one Green’s general reputation for committing pranks or horseplay, can have no. beariiig in this*.case.,

.The testimony of .Arthur. Aipjerson, produced by the respondent, is contradictory.,in .itself, and in many respects contradicts the testimony of Thomas Gorman, and cannot be given any weight. The burden of proving skylarking or horseplay is on the respondent. This, in my opinion, respondent has .failed to do,.

Respondent further contends that section 2 of the Workmen’s Compensation act does..not apply because the deceased, Nicholas Radasocky, infant employe at the time of his employment, executed a certain .contract in which he agreed that the-schedule of compensation, as provided in section 2 of the New Jersey, li^opkmep’s Compensation act, did not apply and that the provisions of section 1 should obtain.

It is true .that th,e said infant did execute such a contract, but. I find that no' notice of the execution of said contract between respondent, and . said infant, .had been given to the parents .or guardians of .said infant, in accordance with paragraph 9-.of section., 2 of the Workmen’s .Compensation act (Supp. Comp. Stat.j.p. Ig42), vyhich provides as follows:

“Every contract of hiring made subsequent to the time ■provided for this act to take effect shall be presumed to have been made with reference to the provisions of section 2 of this ■act, and unless there be as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or by written notice from either party to the other that the provisions of section 2 of this act are not intended to apply, then it shall he presumed that the parties have accepted the provisions of section 2 oí this act and have agreed to be bound thereby. In the employment of minors, •section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor.”

I, therefore, find that the parties hereto are bound by the provisions of section 2 of said act.

Kespondent further contends that, since the accident occurred on property purchased by the United States government to he used as an arsenal, exclusive jurisdiction over which was ceded to the United States government by the State of New Jersey by an act of the legislature, passed in 1921, this court has no jurisdiction to hear this case.

Article 1, subdivision 17, section 8 of the constitution of the United States, vests power in congress as follows: “To exercise exclusive legislation in all cases whatsoever, of such district (not exceeding ten miles square) as may by cession of particular states and the acceptance of congress, become ¡the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards and other needful buildings.”

The legislature of the State of New Jersey passed an act in 1921, page 820, chapter 277, entitled “An act ceding to the United States of America jurisdiction in and over the lands heretofore or hereafter acquired by them for ordnance purposes near Metuchen, Middlesex county. Paragraph 1 of gaid act provides as follows :

“There is hereby transferred and ceded to the United States of America jurisdiction in and over so much of the territory'wi&iñ''this sl'ate'ás is included within1 all such lands as heretofore‘have beeii-acquired by them for -use for ordnance purposes near'Metuehen; in-the-townships of- Woo.dbri.dge and Raritan, county of Middlesex; and-now occupied.as an ord-haiicfe depot known as the' Raritan- arsenal, and-in and oyer" all other lands' that may hereafter be- acquired by them for -like use in the establishment, completion-ox extension--of said, ordnahcfe'clepot,' But''the-'jurisdiction:hereby ceded shall'con^ tiiiue no Ibhgef' tlian the: said' United States1 shall- own said land'' or landS'T

The 'above-mentioned prehiises-afe known.as-Camp Raritan, and the injuries'to'the'said Nicholas Radasocky, which caused his death, occurred on- said premisés.

-In the case of the Chicago; Rock Island and Pacific Railroad Company, plaintiff in error v. William McGlinn, 114 Sup. Ct. Rep. 270, Mr. Justice Field, who wrote-the- opinion of the'court,'in part, says as follows:

!'“It is 'a'general': ruie -of public law],- recognized ■ and acted upon "by'the'United States,-that whenever political jurisdiction and legislative power over any territory are transferred from one nation'or sovereign to another, ■ municipal'láwS of the country, that is, laws which -are intended for the prote<L tioii of private rights, continue in' force until- abrogated or changed’by tlíé new g'oVei&ment'Or sovereign. By the Cession, public property remains as before and with it those1 municipal laws which are designed to "secure its'peaceful use'and enjoyment], as'á'matter bf'course, all laws,-ordinances-aiid regulations 'in cónflidt-with thé’pOlitical 'character,'institution-’’and constitution;'of'the new government-áre at once displaced.--1'

Thus, upon a cession of political jurisdiction!and 'legislative power — arid the’latter" is involved in the former — to''the United States, 'the'lriws of'the eouhtryin support’of aii established religion'dr abridging the freedom of the'press of arlthorizing cruel arid unusual-punishments and the’like''would at oncé 'cease' to he of obligatory force,' without"ariy 'declhras tioii to that effect, and the laws of the country oil-' other Sub-: jects would necessarily be superseded by existing 'laws óf the new government 'upon the same matters: But,'vvitli the respect of other laws affecting the possession, use and transfer of property and designed to secure- good order and peace in the community and promote-its health and-prosperity, which áre strictly of a municipal character, the rule.is general that a change of government leaves them in force until, by direct action of the new government they are altered or repealed.” American Ins. Co. v. Canter, 1- Pet. 542; Halleck Int. L. ch. 34, ¶ 14.

In the case' of the State v. Morris, 76 N. J. L. 222, the question arose as to whether or not the State of New Jersey had jurisdiction over a crime which had been committed on a reservation in this state, purchaser by the United States of America in 1806, the state consenting thereto in 1804. .Justice Yoorhoes, who wrote--the opinion of the court in this case, in'part, says as follows:-

"It is well settled that the federal courts ha\e no jurisdiction over crimes except such as are made cognizable before them by an act of congress. Common-law criminal offenses cannot be punished by the federal courts without federal statutory authority. Whether or not, without such legislation, the authority of the state would remain over the lands ceded, or whether offenders upon such reservations would be immune from punishment, is not necessary to decide.

"Congress has legislated upon the subject and has enacted that if any offense be committed in any place which has been or may hereafter be ceded to and under the jurisdiction of the United States, which offense is not prohibited or the punishment thereof is not specially provided for by any law of the United States, such offense shall he liable to and receive the same punishment as the laws of' the state in which such place is situated, now in force, provided for the like offense when committed within the jurisdiction of such state.

"'When congress exercises the power conferred by the constitution and legislates with reference to lands so purchased and ceded, such legislation, by virtue of the federal constitution. becomes exclusive. The state court, therefore, -was without jurisdiction to try the case.”

“Where lands within a state is acquired by the United States, with the consent of the state, the jurisdiction of the United States over it is supreme, and a reservation by the state of the right to serve civil or criminal process within the land ceded is limited to action arising outside of the ceded territory, but the laws of the state for the enforcement of municipal or private rights of individuals residing therein continue unless the United States provides legislation for the territory, and where jurisdiction is not given by the federal law to federal courts to assert and protect private rights, such rights may be enforced in the state courts.” Divine v. Unaka National Bank, 140 S. W. Rep. 747.

There are numerous authorities to the same effect. As nothing has been done by congress to displace the laws of this state and the jurisdiction of its courts in regard to private rights and remedies, with respect to the land ceded for the purpose of an arsenal at’ Camp Raritan, Middlesex county, New Jersey, these matters remain unaffected by the act of cession.-

I do, therefore, find and determine from the. evidence as follows:

First. That Nicholas Radasocky, deceased, was, on September 21st> 1922, in the employ of the Columbia Salvage Corporation, the respondent, which employment was subject to the compensation section of page 96, laws of 1911, ■and the supplements thereto and the acts amendatory thereof.

Second. That the petitioners Julia Radasocky and Nicholas Radasocky are the parents of the said Nicholas Radasocky, deceased, and that Mary Radasocky and Helen Radasocky, petitioners, are sisters of the said Nicholas Radasocky, deceased.

Third. That on the 21st day of September,-1922, Nicholas Radasocky, the deceased, met with an accident, arising out of' and in the course of his employment ;■ that intoxication- was not the proximate cause, nor was the injury intentionally .self-inflicted.

Fourth. That Nicholas Radasocky, at the time of his injury and death, was an infant of the age of sixteen years.

Fifth. That respondent herein had knowledge of said accident within the time prescribed in paragraph 15 of said act.

Sixth. That the said accident occurred while deceased was firing off percussion caps in cartridges, and that one of said cartridges contained powder, and that in firing off the percussion cap in said cartridge he was injured by the explosion of said loaded. cartridge on September 21st, 1922, and because of said injuries, died on September 23, 1922.

Seventh. That petitioners are entitled to no medical expenses.

Eighth. That the wages of deceased were $23.04 per week.

Ninth. That petitioners Julia Radasocky and Nicholas Radasocky are infirm and unable to work, and have no property and no means of support, but were dependent upon the said Nicholas Radasocky.

Tenth. That the said petitioner Mary Radasocky, on September 21st, 1922, was an infant of the age of twelve years, and petitioner Helen Radasocky, on September 21st, 1922, was an infant of the age of four years; that the said petitioners Mary Radasocky and Helen Radasocky .have no property and-no income or visible means of support, but were dependent on the said Nicholas Radasocky.

Eleventh. That the petitioners, Julia Radasocky, Nicholas Radasocky and the two children, Mary Radasocky and Helen Radasocky, the dependents of deceased, are entitled to compensation from the respondent for a period of three hundred weeks at the rate of $11.52; that petitioner is entitled to funeral expenses to the amount of $100; that petitioners are entitled to their attorney’s fees in this case.

It is therefore, on this 19th clay of January, 1925, ordered that judgment final be entered in favor of the petitioners and against the respondent, and that the respondent make payments thereof as follows:

For the accident resulting in the death of Nicholas Radasocky, immediate payment in a lump sum of compensation at the rate of $11.52 per week from September 23d, 1922, to the. date 'of this order, and thereafter weekly payments of $11.52 for the balance of the, three hundred weeks., , ' ,

Also $100 for funeral expenses.

It is further ordered that respondent pay, a fee of $200 to .the, attorneys, for the petitioners. , ,

It is. further ordered .that petitioners pay. fi fee of ,$200 to their attorneys from the compensation due them.


author: Harry J. Goas,Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    THOMAS McCRACKEN, PETITIONER, v. FRED W. SERBE AND/OR F. W. SERBE, INCORPORATED, RESPONDENTS.
    Injury by Automobile — Agreement as to Compensation — Leave to Apply For Commutation of Award — Upon Application for Commutation Respondent Filed Two Defenses, Intoxication and Discharge Prior to Accident — Finding For Petitioner.
    On petition, &c. On determination of facts and -award.
   This matter coming, on for formal hearing- before me ■ in the presence of Mayer M. Semel, Esq., attorney for the petitioner, and Frank G-. Turner, Esq., attorney, for the respondents, and after hearing and considering the testimony of witnesses I do find and determine the following-:

1. That the petitioner was, on the 24th day of January, 1924, in the employ .of the respondent or respondents in the capacity of mover,. performing such drfties as are required by the respondents in connection with their. business as storage men' and movers. ■

2. That at the time of the injury the said petitioner received as wages for said employment the .sum of $35 per week. •

3. That on the 24th day of January, 1924, the said petitioner, while in the course of his employment and, engaged in the work as mover, was injured by being struck by an automobile, as a result of.-which he was precipitated to the ground and was injured, which accident and.injury arose out of and in tire course of his employment with the. respondents.

4. Tiiat flip respondents herein had knowledge of-the said accident.

5. As a result of-the said -accident, petitioner was injured and sustained a shock to his "nervous system. Because of the injuries aforementioned, petitioner has sustained an impairment. equivalent to-twenty-five• por cent, of total disability. ■ . - -

6. The petitioner herein has expended for- medical attendance during the period provided by law the sum of $65, which has been paid by the respondents.

7. That the respondents have caused to be paid to the petitioner the «urn of $17 per week for-a period ending May 26th, 1924, covering payment in full on account of temporary disability. ' ■ ■

8. That the petitioner is entitled to compensation - as a result of the injuries sustained by him for a period of one hundred and twenty-five weeks at the rate of $17 per week; covering twenty-five per cent, of total disability.

9. I do further find that oil the 18th day of June, 1924, the petitioner and respondents did appear before me on informal hearing and did enter into- an agreement in writing, wherein and whereby it was agreed between the parties that the respondents do pay to the petitioner, -and the petitioner receive a sum in full payment or settlement for his injuries, equivalent to twenty-five per cent., or one hundred and twenty-five weeks at the rate of $17 per week, together with the sum of $65 in payment of medical services, and also $100 as a-counsel fee to petitioner’s attorney.

10. T do further find that there was provided for in the said agreement of settlement that the respondents pay within three days from the date of said settlement, a sum equivalent to thirty-one and one-quarter weeks at the rate of $17 per week, or $531.25 on account of the compensation awarded.

■■ 11. I do further -find that in the aforementioned agreement, the^ petitioner was given leave to apply for a commutation of such compensation as shall remain due and unpaid at such time as the petitioners could satisfactorily show that such commutation of compensation. would be 'for the best interest of the petitioner, the same to be accepted in full payment of his claim arising out of the accident and injuries as aforesaid, and such commutation to' be made in the manner and form approved by me as deputy commissioner.

12. The above agreement -was reduced to writing in the form of a determination and award, and was approved and signed by me as deputy commissioner and filed in the office of the workmen’s compensation bureau on the said 18th' day of June, 1924.

13. T do further find that on or about the 3d day of July, 1924, the petitioner did present to me as deputy commissioner a petition praying that the commutation be awarded in accordance with the terms of the said agreement hereinbefore mentioned, from which petition and investigation pursuant to the same I did learn and ascertain that the petitioner, because of his impaired condition of health, due to the injuries received, was unable to fully and completely continue to work as a mover and truckman, and that the said petitioner, together with his son,' a young man of some twenty odd years, who was also employed as a mover, and one- Alexander G. San some, a reputable citizen -of the town of Irvington, had agreed to engage in the trucking and moving business, and arranged to incorporate a- company to be known as “The Mack Storage and Trucking Company,” and had purchased a five-ton Mack truck suitable for this kind of business, and had paid a deposit for rental upon a place of business to be used as an office in the city of Newark. My investigation satisfied me that this arrangement would be a very suitable one for the petitioner, for the reason that it would enable him to make a comfortable and satisfactory living for his family in spite of his impaired condition of health.

14. After I had considered the petition for commutation and h%d decided to approve the same, and after petitioner, through his attorney, had submitted same together with my approval to the respondents, I did learn for the first time that the respondents were opposed to the payment of the said commutation, and, in fact, of any further payments of compensation to the petitioner. The petitioner did thereupon file a formal petition for a hearing, and the respondents did interpose two defenses — first, that the petitioner was injured by reason of being intoxicated, and secondly, that he had been discharged immediately prior to the happening of the accident.

15. Without passing upon the force and effect of the agreement of settlement, I am of the opinion, and I do find, that the terms and conditions therein should be sustained and enforced. T am satisfied from the testimony, which was conflicting, that the respondents knew, at or before the making of this agreement, whether or not the petitioner was, in fact, intoxicated, and also whether or not the employment had at that time terminated. Surely, the respondents must have resolved these two features to their own satisfaction in favor of the petitioner, or the respondents would not have consented to the making and executing of the aforementioned agreement and determination and award herein made, and would not have permitted the petitioner to collect compensation on account, which is admitted was paid him by the respondents.

16. Bearing these facts in mind, I fail to see that the defenses of drunkenness and discharge immediately prior to the accident are entitled to any consideration. The evidence with reference to intoxication is conflicting. The doctor wlm examined and treated the petitioner in the hospital immediately after the accident was unable to tell whether the petitioner was intoxicated, while the person whose furniture was last moved prior to the accident by the petitioner testified that petitioner was not intoxicated while he was doing this work. Tt is quite possible and even probable that the petitioner may have been drinking during the day on which this accident occurred. The respondents, by their own testimony, show that during the ten or twelve years that the petitioner was employed for them he was-.accustomed to drinking, .and did so.',during thé time of ,his-¡employment-,.:.. However, there is no'testimony before'me. from, which I-can ¡find that the petitioner. was.-actuall-y intoxicated at the time that-the.accident occurred, so. that I-am-.unable to. find,.-as is required by the statute,- that intoxication . was-the -proximate . Cause-.of. the aecident. This is especially .so since not only-the..petitioner, but .other witnesses..produced by;-the .petitioner,. who -were present at and- immediately -before the. accident, deny that the petitioner was intoxicated. The respondents also testified .that-because'the petitioner was intoxicated, he was .discharged-immediately before .he left the office-of :the respondents and was -injured:- This, is denied by- the petitioner, and also by one- Witness, produced by the respondent, who was present, and I find that there'is-not sufficient testimony before-' me from -which -I can- conclude,- from the greater weight of- the- evidence; -that -the-petitioner-was, in fact, discharged at that-time,1 especially in- view of'the-fact that for several months -thereafter .the respondents -paid- petitioner, temporary compensation -and gave petitioner the' benefit -of medical and surgical treatment,- provided without cost-to the' petitioner by;the respondents.

17. - With- reference to the defense interposed by the -respondents that the petitioner performed work for the respondents after the accident, and because of which -fact respondents contend that petitioner had entirely recovered, I am unable to agree-with-the respondents, for although--I' am satisfied- that' petitioner did some work for respondents at intervals after the aecident, I find that the -nature of the work-performed was possible,-as petitioner’s disability was only twenty-five per-cent..

18. I find,' also, that the award of twenty-five per cent, partial permanent total disability is-reasonable and proper, and base my findings not -only upon the report of the medical branch of the workmen’s compensation bureau and of -the two physicians who have testified for the petitioner, but also from the fact that the physician produced by the respondents concedes five per cent, to ten per cent, disability is there if based only on the one examination made' by that doctor, while twenty per cent, would be the highest he would he entitled to receive if what the petitioner testifies to is true.

19. I also find from the testimony offered that the petitioner was sent by the' respondents to another job on that evening that the petitioner was actually hurt, and that the petitioner, while on his way to the garage of the respondents to get another truck, was injured as hereinbefore mentioned,

20. I am satisfied that the stipulation and agreement herein])? fore mentioned, which had been signed by both parties in interest and approved by’me and filed in this bureau, on June 18th, 1924, based on twenty-five per cent, of the total disability, has, in accordance with the provisions of section 2. subdivision 21, paragraph P of the .Workmen’s Compensation act, been fully substantiated by the evidence produced at the formal hearing, in-the within, matter,-and that all .of the facts and circtímstauces"attending the injury of the petitioner must have been in the possession and knowledge of the respondents, as it is not likely that the" insurance carrier for the respondents would have consented to the making and execution of the aforementioned agreement in its form and substance, without having first carefully investigated the within matter. '

21. Por the reasons above expressed, I find that the petitioner is entitled to' partial permanent total disability of twenty-five per cent. ' 1

22. T do further order the respondents ’to pay to the petitioner the suni due in commutation, to Wit: The sum of 8,3,123, less the sum of $531.25' paid ón account on and after June 18th, 1924,'less any other sums paid on'account of the permanent disability since June 18th, 1924, less the statutory interest on.the"Balance due on the within commutation.

.23. T do further order the respondents to pay to Meyer M. Seine], attorney for petitioner, the sum of $150, as counsel fee for Bis services, expenses and disbursements rendered and incurred in connection with the' formal hearing in the within matter: L

24. I do further order the petitioner to pay to the said Meyer M. Semel, .his attorney, the sum of $300 for his services rendered in his behalf. . .. .. -

Harry J. Goas,Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARTHA E. MARSHALL, PETITIONER, v. MARGARETTA S. PYNE, RESPONDENT.
    Death of Chauffeur Employe — Alleged Defective Heart of Driver Not Sustained — Car Apparently Defective
    For the petitioner, Bayard Stockton.

    For the respondent indemnity company, Charles S. Gray.

   This is a claim under the Workmen’s Compensation act of the state, in which the petitioner seeks compensation for the death of her husband, which she asserts was caused while acting as chauffeur and driving the car of the respondent. It appears that while returning to Princeton from Philadelphia, a mile or two before reaching the Delaware river, the car drifted to the right, the two right wheels leaving the paved highway and traversing the dirt for approximately sixty feet, until - the front right wheel struck the embankment, possibly four feet in height, whereupon the car upset toward the left, throwing the chauffeur to the road, where he was pressed to the ground by the roof of the car. The chauffeur spoke once or twice while being released and placed in a passing car, in, which he was taken to St. Francis Hospital, in Trenton, where he died about six minutes after being admitted. The car was described as being a heavy one, with open front but enclosed rear seat. It was testified that the beading of the roof was broken at the point where it was stated to have rested on the back of the deceased.

The defense endeavored to establish that the upset was caused by illness on the part of the driver due to heart trouble, but nothing definite was presented other than testimony that the deceased, upon taking out an insurance policy, was required to pay a slightly larger premium due to a heart condition. Tiie coroner’s physician, present at the request of the respondent, testified that at the autopsy lie found no marks of injury. After eliminating other cause? the cause of death was given as chronic myocarditis.

The intern at the hospital testified to the finding of discolored back and three broken ribs. It was his opinion also that internal injuries had been sustained.

The man who brought in the disabled car with a wrecking car testified that the steering wheel would not operate the front wheels, and two men from the repair shop> to which the car was taken testified that a nut which held together two parts of the steering gear was missing. That it could not possibly have been knocked off at the time of the accident without stripping or otherwise mutilating the threads, which threads showed no injury, but were in perfect condition, and that without this nut to hold the steering mechanism intact the driver would be utterly helpless to control the car.

According to the testimony of the respondent the deceased had been in good health and had never lost a day during the two years he had been in her employ. It is inconceivable that of the two years that this man had driven this ear something should independently go wrong with him and with the car at the one identical moment. It was utterly impossible for a heart attack cn the part of the driver to cause the nut to drop off of the steering gear. It is entirely possible that the realization of a disconnected steering, gear might have caused a heart attack.

The conclusion is inescapable that the proximate cause of this man’s death was the absence of the lost nut from the steering gear. I am unable to see what purpose is conserved by a: hair-splitting analysis as to whether -the niair’s ribs were not strong enough to' sustain the weight- of -the heavy ear without breaking, or his heart was -not strong enough t'o stand the shock of being-thrown-to the ground by the upsetting of the car which endangered the- lives of three other persons.

An order- will be drawn in favor of -the petitioner.

W. E: Stubbs, Deputy Commissioner of Compensation.


author: Harry J. G-oas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    WILLIAM RONEY, PETITIONER, v. GRIFFITH PIANO COMPANY, RESPONDENT.
    Injury to Neck in Moving Piano — Injury Not Regarded Serious at Time — Dispute About Notice — Temporary Disability Indefinitely — No Estimate of Permanent Disability Until Later.
    On order oE determination.
    Eor the petitioner, Charles Becker.

    For the respondent, Clarence B. Tippett.

   :|i * * % i*; if; * ❖

3. The facts show that on December 29th, 1923, the petitioner left the warehouse of the respondent with the foreman, Charles Penn, and Joseph Hedden and John Brown, who were also acting as piano-movers. They loaded a babygrand piano on their truck and proceeded to the Branford Theatre, where the piano ivas moved from the truck to the rear of the stage. The petitioner, Charles Penn, and Joseph Hedden and John .Brown, testified concerning the tilting of the upper end of the piano upon the edge of the stage. The three men, the petitioner being in the center, raised the lower end and attempted to shove the instrument on the stage, the fourth man being on the stage, when it slipped from the edge of the stage. When this concert piano slipped to the floor, carrying the petitioner with it, the two men, at each end of the piano, let go, and the petitioner, then bearing the full weight alone, was caught between the piano and the steps, leading from the floor to the door underneath the stage. The testimony and the inferences that may be drawn indicate that his neck was thereby injured on the right side. Although the occurrence did not cause any alarm at the time, the petitioner testified that he told Mr. Peckham, shipping clerk for the respondent, of the accident that evening, when he called at the office for his weekly pay, when he said to Peckham, “A almost came not being here,” referring to the accident.

4. Mr. Peckham, the shipping clerk for the respondent, denied that he had received any notice, report or knowledge of the accident or injury to the petitioner prior to April 1st, 1924. Mr. Charles Penn, the foreman, testified that he told Mr. Peckham on the same day' of the damage to the piano, which Peckham admitted, but he denied that he was told about the injury to the petitioner. Mr. Penn, further testified that two weeks later the petitioner complained at various times that his neck bothered him, when the petitioner began to apply liniments. Mr. Penn also testified that he took him to Dr. Hitchcock’s office for treatment on his own volition, as he had to go there on account of his little daughter’s injury.

5. Penn testified that Roney stood with his head like that (indicating). “He was in the middle when it got about this distance, going to fall down. Naturally, I let go. I couldn’t hold it. He didn’t let go. It gave him a jerk. After that he stood with his head like this. He held his head like this. I said, ‘Did you get hurt?’ He stood for about three or four minutes and then turned around and said, T got an awful jar.’ ”

6. The petitioner continued to work for a week when he felt a soreness on the side of his neck, and in rubbing the spot he felt that the skin had roughened. The injured spot began to swell and in one month began to have pains from shoulder blade to top of head. He then called at the office of Dr. Wolf, on Mulberry street, Newark, aborit the middle of Pebruarv, and he diagnosed the case as a gastric condition. He prescribed certain medicines to the petitioner, but he gained no relief.

7. The respondent claims no notice or knowledge within the ninety-day period, and it therefore becomes a question of veracity between the petitioner and Mr. Peckham. When Mr. Peckham was recalled to the stand on his direct examination he was absolutely sure he was not told about the petitioner’s injury, but on re-examination he was not sure whether or not he knew that Roney was injured. The foreman, Charles Penn, testified that the piano slipped and that the petitioner went down with it and complained to him two weeks later of the effects of his injury. If the foreman can receive and make repo its of accident to property, he certainly can do the same concerning injuries to respondent’s employes.

8. The preponderance of the medical testimony indicates that at the time of the accident the petitioner sustained a rupture of the sternal mastoid muscle, and that he was treated for hemorrhagic fibroma which resulted in carcinomatous degeneration with the present extensive involvment of his neck and face. The accident was the direct cause of the above conditions, for the reason that it caused an injury to the above muscles, developing into a localized tumor which in turn developed into a malignant and ultimately fatal condition.

9. At the present time it is impossible to say how soon a fatal termination will occur. T believe that'this man should remain on temporary disability indefinitely, for the reason that he has a condition which does not improve under treatment, and is incurable.

10. "No estimate of permanent disability can he made now or later.

$ * í¡: í|í # %

Harry J. G-oas, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JOSEPH REINHOLD, PETITIONER, v. ASSOCIATED HUMANE SOCIETY OF NEW JERSEY, RESPONDENT.
    Alleged' Injury While Cranking ' Ford Car — No Evidence That Anything Unusual Occurred at the Time of Cranking — Claim . Dismissed. .
   The above matter having come on regularly for hearing pursuant .to an act of the legislature of the State of New Jersey commonly known as the Workmen’s Compensation act, and it appearing that two petitions have been filed, one alleging an accident on January 9th, 1925, being claim petition number -1,019, and one alleging an accident on April 23d, 1925, being claim petition number 4,020, and said latter petition alleging that the petitioner, while cranking a Ford, received an injury to his back, I do find and determine as follows:

' 1. That on or about April 23d, 1925, petitioner was employed by, the respondent.

2. That there is no testimony in the case indicating that anything unusual occurred at the time petitioner was cranking the Ford car as alleged. The testimony being simply to the effect that after cranking' this car in the usual course petitioner felt a pain in his back.

3. Accordingly, I find that the petitioner has not met with an accident under the terms of the Workmen’s Compensation act, for which reason I order that the claim petition be dismissed and judgment in favor of the respondent entered.

Counsel for the respondent is entitled to a counsel fee of $35.

Harry J. Goas, Deputy Commissioner.


text:
    JOHN A. COLL, RESPONDENT, v. LEHIGH VALLEY RAILROAD COMPANY, APPELLANT.
    Submitted November 6, 1924
    Decided September 4, 1925.
    Negligence — Federal Employers’ Liability Act: — Injury to Railroad Employe Through Defective Brake-staff — Court Not in Error in Instructing That the Plaintiff Was Engaged in Interstate Commerce — Reasonable Care of Employer to Guard Against Latent Defects in Equipment Considered at Length —Safety Appliance Act Also Invoked' — Charge to Jury Regarding Latent Defects Considered at Length — Duty of Plaintiff to Minimize Damages — Judgment For Plaintiff Affirmed.
    On appeal from the Warren Circuit Court.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbacii.
    For the appellant, Smith & Smith, and Edward A. Markley.

    For the respondent, W. Reading Gebhardt.

   Per Curiam.

The plaintiff was a freight brakeman in the employ of the defendant company, and on the night of October 30th, 1922, while in the course of his employment, sustained severe injuries as a result of the breaking of a brake-staff, or shaft, while he was setting the hand-brake oil a car.- Claiming that he was at the time engaged in interstate commerce, he brought suit pursuant to the federal statutes in that behalf, and obtained a judgment which is before us fox review. A number of points are made for reversal, and will be dealt with in the order wherein they appear on the briefs.

The first point is that the trial court erred in instructing the jury as a court question that plaintiff was engaged in interstate commerce. This instruction was correct. The evidence shows, without dispute, that plaintiff was participating in the making up of a train, some part of which, it is true, was destined for points in the same state (Pennsjdvania), but other cars in which were in transit to points outside that state.

2. The second point, as stated in heavy-faced type in appellant’s .brief, is that—

“The trial court erred in instructing the jury that they could find a verdict for the plaintiff solely on the theory'that the defendant was negligent, in that it did not exercise reasonable care • to discover and remedy the defect in the brake-staff "when there was no evidence adduced'at the trial to. support that theory.”

A number of pages of the brief are devoted to this point, but the particular grounds of appeal relied on are not made very plain to us. , We gather that, according to appellant’s view, there was nothing to show how long the defect in .the brake-staff had existed, and, consequently, there was no basis for application of the rule requiring discovery and rectification within a reasonable time if discovery would result from reasonable care in inspection, &c. The car was not a Lehigh Valley car, and it does not appéar how long it had been under defendant’s control; but the rule, as laid, down by the Court of Errors and Appeals in Anderson v. Erie Railroad Co., 68 N. J. L. 647 (at p. 649), which is, of course, binding on us, is that on receipt of the car the company is required to make a “cursory examination;” “afi inspection for defects visible or discernible by ordinary examination;” “such examination’ as would be likely to discover conditions rendering a car so constructed unfit for safe transportation on the company’s line.” When it is considered that the brake-staff twisted off under the plaintiff’s hand as he was setting the brake, as the result of a crack showing on the.outside of the shaft above the cotter pin — so the testimony ran — it seems manifestly for the jury to say whether .srich defect could, and should have been discovered on a “cursory examination” and the ear retired from business until it was rectified.

It is further urged, under this point, that the court failed to include an instruction that the defendant was entitled to a reasonable time after discovery to rectify the defect. The court was not requested so to charge, and we fail to find any adequate exception raising the point. Hence, it is unnecessary to consider whether, in any event, it would not be the duty of defendant promptly to withdraw the ear from service until repairs were made.

3. The next point is that there was error in instructing ihe jury that the complaint counted on the “Safety Appliance” act, as well as the Federal Employers’ Liability act. This seems clearly to be without merit. The complaint invokes both acts, by name in perfectly plain terms, and counsel for defendant were specifically apprised of this on the opening.

' -1. 'Ihe next point alleges error in refusing to direct a verdict for defendant. If we are correct in what has been said above, a verdict conld not properly have been directed.

i). The next ¡joint relates to that part of the charge quoted in the thirteenth gronnd of appeal. In discussing contributory negligence and its bearing on the case, the court pointed out that it applied only to damages, in any event, and that even this rule “would not apply if the negligence of the defendant. consisted in violating the Safety Appliance act as to providing an efficient brake. In that case the statute says that the prorating phase of the statute shall not apply. 1/ only applies in case the defendant was negligent as lo the inspection'part of the alleged negligence.” It is the italicized sentence that is urgled for error.

We are not required to consider this ground of appeal (which has not been quoted in full) because it contains several distinct propositions, some of which were proper. Engle v. State, 50 N. J. L. 272; State v. Contarino, 92 Id, 381; 105 Atl. Rep. 197; State v. Spallone, 97 Id. 221; 117 Atl. Rep. 151. Rut apart from this practice rule, we think no harmful error was committed. The point of the present objection seems to be that when the judge spoke of the “inspection part of the alleged negligence,” the jury must have understood him to confine contributory negligence to lack of inspection alone, excluding.failure to repair, and SO' on. But reading the instruction in full, it is plain that he was drawing a distinction between liability under the general act and under the Safety Appliance act, and that while it was a verbal inaccuracy to speak of “inspection part,”' the jury could not have 'been misled into drawing the find distinction now suggested by counsel.

6. The sixth point challenges instructions permitting the jury to find that the- hand brake was not efficient, the argument being that there was no evidence to show this. Jn view of what has been said above,- this point needs no particular discussion.

7. The seventh point relates to the defendant’s requests to charges numbered 8 to 12, inclusive, and not charged in the language in 'which they were presented. No. 8 is as follows:

“8. The defendant is not liable for a latent defect in the material of which the brake-staff was constructed unless said latent defect would have been revealed by customary inspection which is made by railroad companies.”

Anticipating a refusal of No. 8, the requests proceeded as follows:

“If the court refuses to charge No. 8, then we request the court to charge as follows:

“9. The defendant is not liable for the latent defect in the .material of which the brake-staff was constructed unless said latent defect would have been revealed by a reasonably careful inspection.

“10. The defendant was not an 'insurer of the plaintiff’s .safety as against a latent defect of the brake-staff.

“11. The defendant’s duty in respect to a latent defect in the brake-staff was to exercise reasonable care to guard against such defects. If the defendant exercised such care in this case the defendant is not liable for the injuries caused by such latent defect, and the defendant cannot recover.

“12. If the defendant, in making this inspection of the brake-staff in question, made such an inspection thereof as was usually made by reasonably careful and prudent railroad companies, or if the inspection that is usually made by reasonably careful railroads of brake-staffs would not have revealed such a defect, then the plaintiff cannot recover, and the verdict must he for the defendant.”

We think request No. 8 was properly refused, as we do not understand that the "customary inspection by railroad companies” is a controlling tost of reasonable care. For authority on this point we need not go outside of appellant’s brief, quoting from 26 Oye. 1140, the rule as follows: “Customary methods of inspection, while, not conclusive upon ihe question of negligence, will, as a rule, decide the duty of the master” (italics ours). If not conclusive, the request was manifestly unwarranted as absolutely controlling the jury on the point.

¿As to the four alternative requests. No. 9 was substantially charged, the court saying:

"The defendant says that even if it had made a reasonably careful inspection of this arm that it could not have been discovered. If, by a reasonable inspection of the brake-arm, this defect could not have been discovered, then, of course, the defendant would not be negligent upon that score.”

As to No. 10, while the court did not tell the jury in so many words that defendant was not an insurer, the whole charge on this branch of the case was predicated on negligence, and nothing else, and they were plainly told that 'unless negligence appeared, defendant could not be held liable under the Federal Employers’ Liability act. This was sufficient to cover the point, apart from any question that might remain whether request ten was too broad because not limiting the proposition to liability under that act.

Request eleven was fully covered on the score of duty, and was clearly too broad as excluding the Safety ¿Appliance act, as it concludes "and the defendant (sic) cannot recover.” Request twelve has the same vice as request eight, and, moreover, there was no evidence that any inspection at all had been made.

The five requests quoted were therefore properly refused.

' The' eighth- point relates-to the exclusion of certain testimony bearing on the question whether the condition of the brake-staff would have been discovered by the ordinary methods of inspection in vogue among railroad men. There were five such questions excluded. Three of them were put to plaintiff’s witness, Miller, - on - cross-examination. Miller was the conductor of the train on which plaintiff was working, and he described what he saw of the accident, and also the condition of the brake appliance after the accident. Although he was permitted, on cross-examination', to testify to the length of his experience in railroading, „ and to having'seen car inspectors at work, the questions excluded, which were, in substance, whether the flaw he described would be discoverable in the ordinary inspection made by railroad inspectors; ,were obviously in the realm of opinion evidence. He had not been called or qualified as -an- expert, and defendant was simply endeavoring to use him in that capacity on cross-examination. The three questions, all of' the same nature, were objected to as calling' for a conclusion, i. e., whether someone else making- a certain kind of inspection would have discovered the flaw. They were probably objectionable on that ground, but they were certainly incompetent as not proper cross-examination,- and this alone is sufficient to justify the- action o£ the court in overruling them.

As to the excluded question put to the witness Reiser, he answered a question precisely similar to it two pages farther on, so no harm was done. The same is true of the question to the witness McCracken. ■

9. The court refused-to -charge defendant’s request No. 6: “If the evidence is evenly balanced on the question of negligence, then the plaintiff cannot recover, and the verdict .must -be for the defendant.” ■

Eor reasons airead stated, this was vicious as ignoring the Safety Appliance act.

The -tenth and last point raises a part -of the charge'relating to damages, and the loss of wages as an element' of the same. The court said: “There has been testimony here as to whether the. plaintiff declined to accept employment, whether he was physically able to accept employment.” (The .following is quoted as the fifteenth ground of appeal.) “It was the duty of the plaintiff to minimize his damages as much .as possible, and it was his duty to accept employment which he was able to perform, and thus minimize the damages which he might call upon the defendant to pay.” (So far, the court was manifestly correct.) “What his duty was and how much he would or should have earned in that respect, if anything, is for yon to say.” (This is the sentence challenged as erroneous.)

The criticism is that the offending sentence left it to the jury to say whether plaintiff should try to minimize the damages at all. It must be conceded that the language is a trifle obscure, but we are unwilling to agree that it was harmful error requiring a reversal. The court plainly told the jury that plaintiff was under a duty to minimize damages as far ,as he could, by accepting other employment, and, as we read the passage, told them it was for them to decide what duty the plaintiff was under, specifically in view of his injured condition as they found that condition to he; in other words, gueh employment as he could obtain and accept in view of that condition, it was his duty to accept. What was left to them was not duty generally, but duty as measured by condition and ability. So interpreted, the charge is correct, disregarding the multifarious character of the ground of appeal.

This disposes of all the points made for the appellant. After a rather laborious examination of the voluminous briefs submitted, we conclude that there is no error requiring reversal, and the judgment is accordingly affirmed.


author: Flannagan, J.

text:
    Essex County Court of Oyer and Terminer.
    STATE OF NEW JERSEY v. CHARLES CAPAWANNA AND JAMES LA MORGESE, DEFENDANTS.
    Decided September 2, 1925.
    Bail — Murder Cases — Courts Act With Decided Caution — Application is Addressed to Discretion of Court — Frankness on Part of Applicant Expected — Facts Presented Reviewed and Held Not to Carry Conviction of Either Frankness tfr of Truth on the Part of One Defendant While the Other Presents No Explanation — Application Denied.
    Eor the state, James Y. D’Aloia.

    Eor the defendant Capawanna, Carl Abruzzese.

    Eor the defendant La Morgese, William A. Lord.

   The opinion of the court was delivered by

Flannagan, J.

This is an application for release on bail on the return of a writ of habeas corpus. The defendants are charged with murder and held without bail.

The state produces testimony tending to establish the following as facts:

• On the morning of July 30th-31st, last, at about six-ten o’clock, the dead body of Mrs. Agnes Wickham, known as the “nurse,” was found in West Orange on the side of St. Cloud avenue, about one-half a mile north of Northfield road. The police were notified, and Dr. Brien, the deputy county physician, was called and he examined the body at about seven-fifteen A. m. He found six fractures of the skull, both eyes black and blue, a cut on the back of the head one and a_ quarter inches long, the front of the neck on both sides full of bruises, a bruise on the left ear and one on the left arm, appearing to have been caused by a bite, scratches on the hack of the right wrist and black and blue marks on the inuer side of each thigh midway between the lower and upper joint. Death was caused by the fracture of the skull through the left petrous bone, and followed almost immediately upon such fracture the deceased could have breathed a minute or two thereafter hut no longer. The deceased had been dead four or five hours at the time the doctor saw the body, and the defendants have, in conversations, made admissions that they were with the deceased while in an automobile four or live hours before the hour when the doctor saw her dead body. The defendants were the last persons' seen with the deceased.

The condition of the body indicates that an attack was made on • deceased and that the motive for the attack was rape, and that she lost her life in the defense of her person.

The defendant Capawanna produces no witnesses, but the defendant La Morgese produces several. La Morgese pictures his connection with the affair as that of the “Good Samaritan,” helping the deceased into Capawanna’s automobile and riding with her a short distance thereafter on the running board of the machine, spraining his ankle in alighting therefrom. The cause of her death, as suggested by testimony in his behalf, is that she fell in a drunken condition and hit the back of her head on the sidewalk before being so' assisted into Capawanna’s machine. Such a fall, manifestly, does not account for the condition of her body when found, and it would not account for her death, because her death was almost instantaneous, while defendant’s witnesses say she talked after the fall and “insisted” on being taken home instead of to the hospital.

Courts act with decided caution in admitting to bail persons held under process of law on charges of murder. State v. Kuchler, 129 Atl. Rep. 632; State v. Goldstein, 40 N. J. L. J. 71. On an apjilication for bail the court does not sit to try the merits of the case or to enter into any nice inquiry as to the precise weight that ought to be allowed to the evidence for and against the prisoner. State v. Rockafellow, 6 Id. 332 (343). The application is addressed to the discretion of the court, and depends upon the circumstances of each individual-case. State v. Mairs, 1 Id. 335 (388); State v. Rockafellow, supra.

. Where the discretion pf a court .is invoked, frankness on the part of the applicant is expected.- The defendant Capawanna makes no attempt' at frankness; he interposes no explanation whatever and rests upon the testimony of the staters witnesses. The affidavits presented in behalf of defendant La Morgese do not carry conviction to my mind of either frankness or truth,

The applications are therefore denied. .


author: Harby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JAMES GERMAN, PETITIONER, v. ABNER S. REEVE & SON, RESPONDENT.
    Casual Employment — On Way in Employer’s Truck to Assist in Unloading — Observing Two Lead Pencils, Left the Seat to Pick Them Up, and Slipping, Was Injured — Case Dismissed.
    On determination and order for dismissal.
   At a hearing held on petitioner’s claim for compensation in the above ease, on December 31st, 1924, petitioner, by his testimony discloses that he, the claimant, was not a regular employe. He was a casual man who helped out occasionally in unloading coal, and was paid by the job. On the day of the accident he was riding on one of the employer’s coal trucks, which was being driven to the place where the coal was to be unloaded. He sat on the seat with the driver, and when the track reached the destination he would have helped in unloading. As the truck was being driven slowly along the street lie noticed two lead pencils, and while the truck was still in motion he either jumped or stepped from the truck to pick up the pencils. In some unexplained manner he slipped or fell, and one of the wheels ran over his ankle, causing the injuries in question.

That the accident did not arise out of the course of employment is evident by the opinion in the case of Smith v. Crescent Belting and Packing Co. 37 N. J. L. J. 292, in which a boy was injured while interfering with an elevator, and the Common Pleas Court of Mercer county, in deciding the issue used the following language: “It has been held that when a workman does something entirely foreign to the work which he is employed to do, &c.”

And as also evidenced in the case of Di Salvio v. Menihan Co., 225 N. Y. 123, Chief Justice Hiscock, in the Court of Appeals, New York State, in Ms opinion., stated that claimant went across the room in which he was employed to say “goodbye” to another workman, and while leaning on a bench the claimant’s arm was caught in a cog wheel, resulting in injuries. The Court of Appeals held that such an injury did not arise out of or in the course of employment, and, in his opinion, stated that “this- act did not enable him either directly or indirectly, -in any tangible sense, ■ to better perform his work,” &'c.

Both these opinions directly state the disposition that should be made of the above case, and since the petitioner, in endeavoring to procure the lead pencils, took himself out of his employment, he is accordingly not entitled to an award.

Be is now ordered on this 21st day of July, 1925, that the aforesaid claim is hereby dismissed without cost to the respondent.

Harby J. Goas, Deputy Commissioner.


author: I-Iakky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau
    CATHERINE FLANAGAN, NEXT OF KIN OF RICHARD FLANAGAN, DECEASED, PETITIONER, v. ERIE RAILROAD COMPANY, RESPONDENT.
    Death From Accident to Flagman at Street Crossing of Greenwood Lake Division of Erie Railroad — Evidence Shows That Railroad Was Engaged in Interstate Commerce — Case Dismissed.
    On determination and order for dismissal.
   The said canse coming on to be heard in the presence of Anthony A. Calandra, of counsel for the petitioner, and Parker, Emery & Van Riper, by George M. Shipman, Jr., counsel for the respondent, and the commissioner, having heard the testimony adduced on behalf of each of the respective parties and the arguments of counsel, is of the opinion that the determination of the question whether Richard Flanagan, deceased, at the time of the alleged accident, was engaged in interstate commerce so as to come within the provisions of the Federal Employers’ Liability act, or whether the said Workmen’s Compensation law of fhe State, of New Jersey should control, is decisive of the ease.

The evidence clearly shows that the said Richard Flanagan, deceased, on and about the time when the alleged accident occurred, was employed as a ground flagman at the grade crossing at Mt. Prospect avenue, Newark, New Jersey, of the Greenwood Lake Division of the Erie Railroad. The evidence further clearly shows that, at the time when said alleged accident occurred, and prior thereto and subsequent thereto, a large amount of freight was transported over the said Greenwood Lake Division to and from points outside the State of New Jersey. It further clearly appears from the evidence that at the time of said alleged accident and prior thereto and subsequent thereto, a considerable number of passengers were transported -over said Greenwood Lake Division from New York City, in the State of New York, to points, in the State, of New Jersey; said.passengers being transported by ferries, owned and operated by the Erie railroad, from New York City to Jersey City; New Jersey, and thence by train to the point of destination. All of said freight and'-passengers passed over the'point Where said Richard Flanagan was stationed. . ...

T, therefore, find that said Richard Flanagan was, at the time at which said alleged accident occurred, engaged in interstate commerce, and, this being so, the petitioner has not met the burden of proving that the decedent was engaged, at the time of the accident, in a service which was not regulated by the Federal Employers* Liability act. See Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 N. J. L. 414; 108 Atl. Rep. 364. Accordingly, the petitioner is not entitled to recover compensation in this proceeding.

It is therefore, on this 17th day of July, 1925, ordered that the petition herein be and the same is hereby dismissed.

I-Iakky J. Goas, Deputy Commissioner.