Agresta v. N.Y., O. & W. Ry. Co., 33978.

• Decision Date: 01 September 1936
• Docket Number: No. 33978.,33978.
• Parties: AGRESTA v. NEW YORK, O. & W. RY. CO.
• Court: New Jersey Supreme Court

186 A. 817

AGRESTA

v. NEW YORK, O. & W. RY. CO.

No. 33978.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Sept. 1, 1936.

Proceeding under the Workmen's Compensation Act by Fabiano Agresta, claimant, opposed by the New York, Ontario & Western Railway Company, employer.

Petition dismissed, and judgment for the employer.

Manuel J. Preola, of Union City, for petitioner.

Charles J. Gormley, of Jersey City, for respondent.

WEGNER, Referee.

The facts in the case subjudice are admitted. Petitioner was employed by the respondent company as a track laborer who at the time of accident was tightening a bolt on a rail on the coal bridge located in the respondent's yards at Weehawken, N. J. This bridge was used to reload coal cars into bins which coal was transported by boats outside of state.

Petitioner stresses point that compensation had been paid under the state statute. The payment of compensation is not an admission of liability and does not bar employer from interposing any valid defense at time of hearing.

I have carefully read the briefs submitted by both petitioner and respondent and made a careful study of cases referred to as well as other cases analogous to the issue.

The burden placed upon petitioner is to prove that his case comes within the state statute. That doctrine is promulgated in the case of Carberry v. Delaware, L. & W. R. R. Co., 93 NJ.Law, 414, 108 A. 364; Lincks v. Erie R. R. Co., 91 NJ.Law, 166, 103 A. 176; Brinsko's Estate v. Lehigh Valley R. R. Co, 90 NJ.Law, 658, 102 A. 390; Hart v. Central R. R. Co, 106 N.J. Law, 31, 147 A. 733, and Flynn v. N. Y. S. & W. R. R, 90 NJ.Law, 450, 101 A. 1034.

In Vincelli v. N. J. Central R. R. Co, 98 NJ.Law, 726, 121 A. 132, 133, the test as to whether or not an employee was engaged in interstate or intrastate commerce was stated to be "not whether an employee is at the time of the accident engaged in work indispensable to the functioning of the railroad as an interstate carrier but whether the employee is working upon some instrumentality used by the carrier in its interstate business."

In the Hart Case above cited the court stated some instrumentalities of interstate railroad, such as bridges, stations, road beds are permanently in interstate commerce. In Frazier v. Hines (D.C.) 260 F. 874, McLean v. B. & M. R. R, 80.N.H. 252, 116 A. 435, and Johnson v. Atlantic Coast Line R. Co, 116 S.C. 135, 107 S.E. 31, employees injured in repair of roadbed were held to be engaged in...