Bissett v. Lehigh Valley R. Co.

• Decision Date: 02 March 1926
• Docket Number: No. 250.,250.
• Citation: 132 A. 302
• Parties: BISSETT v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

132 A. 302

BISSETT

v. LEHIGH VALLEY R. CO.

No. 250.

Supreme Court of New Jersey.

March 2, 1926.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Essex County.

Proceeding under the Workmen's Compensation Act by Harriet A. Bissett for the death of Burt A. Bissett, her husband, claimant, opposed by the Lehigh Valley Railroad Company, employer. From an award by a Deputy Commissioner of the Workmen's Compensation Board, the employer appealed to the court of common pleas, which affirmed the award, and the employer brings certiorari. Affirmed.

Argued October term, 1925, before TRENCHARD, KATZENBACH, and LLOYD, JJ.

Hobart & Minard, of Newark (George S. Hobart, of Newark, of counsel), for prosecutor.

Kalisch & Kalisch and Isidor Kalisch, all of Newark, for defendant.

KATZENBACH, J. This case is before this court upon a writ of certiorari directed to the court of common pleas in and for the county of Essex. The writ brings up the record in a workmen's compensation case. On January 30, 1923, Burt A. Bissett was an employee of the Lehigh Valley Railroad Company. He was foreman at a roundhouse in the Oak Island yard of the Lehigh Valley Railroad Company near Newark, N. J. His work was the repairing of engines and cars. In the yard there was an engine used for making up trains. The engine did not leave the yard. It was used only for shifting cars from one place to another in the yard. On January 30, 1923, this engine, while being used, developed pump trouble. It required repairs. The engineer and firemen so informed Bissett. He told them to place the engine upon tract No. 1, which was a track used for placing engines or cars in need of repairs. This track was also used for the usual yard purposes. The engine was placed on this track. Bissett climbed up on the engine for the purpose of making repairs to the pump. While thus engaged, he fell from it a distance of 12 or 14 feet and received injuries from which he died on March 5, 1923. A helper who had been working with Bissett finished the repairs after the accident. The engine was then again placed in service upon the work which was interrupted by the pump trouble. The repairs made by Bissett's helper were temporary. The engine was on the day following taken to Jersey City for permanent repairs.

Bissett's widow filed a petition with the Workmen's Compensation Bureau for compensation. A hearing was had before Deputy Commissioner Goas. He held that Mrs. Bissett had sustained the burden of proving that, at the time of the accident, Bissett was employed within the provisions of the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 302), that the accident to Bissett and his resulting death arose out of and in the course of his employment, and that the petitioner was entitled to compensation. An appeal was then taken to the Essex county court of common pleas. Upon the testimony taken before the deputy commissioner the court of common pleas affirmed the award of compensation. The Lehigh Valley Railroad Company then made application for a writ of certiorari to bring the ease to this court for review. The writ was allowed.

The prosecutor advances two grounds for reversing the judgment of the Essex county court of common pleas. The first is that Bissett at the time of the accident was engaged in interstate commerce, and was not, for that reason, within the provisions of the Workmen's Compensation Act, and that the petitioner (Mrs. Bissett) did not sustain the burden of proof cast upon, her of showing that her husband was within the provisions of said act at the time he received his fatal injury.

The second ground advanced by the prosecutor is that the finding that Bissett's death was the result of an accident was not justified by the evidence. The second ground we think not difficult of disposition. The evidence is that Bissett, after working some 20 or 30 minutes on the engine, fell, became unconscious, and was taken to the hospital. The workmen who testified to his fall could not tell what was the cause of the fall. The prosecutor argues from this that it must have occurred through illness or faintness. There is no testimony that Bissett was ill or subject to fainting spells. We think, from the testimony as to the fall, and the absence of any testimony tending to show that Bissett had any tendency to fall through faintness, that the court was justified in drawing the inference from the facts heretofore recited that the fall sustained by Bissett was an accident.

The question as to whether or not Bissett, at the time of the accident, was engaged in interstate commerce, and hence not within the provisions of the Workmen's Compensation Act, presents a difficult question for decision. The answer seems to us to depend upon whether or not the engine upon which Bissett was working at the time of the accident Was then in use in interstate commerce or had been withdrawn from service. If it had been withdrawn from service, then this case falls within the doctrine of several cases recently decided in the courts of this state. The leading case in this state on this subject is Herzog v. Hines, Director General, etc., 112 A. 315, 95 N. J. Law, 98. In this case Herzog was employed in the New Durham yards of the West Shore Railroad Company as a car repairer. The yard was used for the making up of freight trains, both interstate and intrastate, for the...