Bolos v. Trenton Fire Clay & Porcelain Co.

• Decision Date: 15 June 1926
• Docket Number: No. 277.,277.
• Citation: 133 A. 764
• Court: New Jersey Supreme Court
• Parties: BOLOS v. TRENTON FIRE CLAY & PORCELAIN CO.

133 A. 764

BOLOS

v. TRENTON FIRE CLAY & PORCELAIN CO.

No. 277.

Supreme Court of New Jersey.

June 15, 1926.

(Syllabus by the Court.)

Proceeding under the Workmen's Compensation Act by Theresa N. Bolos for the death of George Bolos, her husband, claimant, opposed by the Trenton Fire Clay & Porcelain Company, employer. To review the action of the court of common pleas affirming a judgment of the Workmen's Compensation Bureau awarding compensation, the employer brings certiorari. Affirmed.

Argued January term, 1926, before TRENCHARD and KATZENBACH, JJ.

A. V. Dawes, of Trenton, for prosecutor.

H. W. Backes, of Trenton, for defendant.

TRENCHARD, J. This writ, sued out by the employer, brings up for review the action of the Mercer county court of common pleas, affirming the judgment of the Workmen's Compensation Bureau, awarding compensation to the petitioner on account of the death of George Bolos, her husband.

Our examination of the record, in the light of the excellent briefs submitted by the respective parties, leads us to the conclusion that the judgment should not be disturbed.

It appears that Bolos was an employee of the Trenton Fire Clay & Porcelain Company, engaged as a helper upon a truck belonging to the company. The working hours were from 7 o'clock in the morning until 12 o'clock noon, and from 12:30 p. m. until 5 p. m.

On May 18, 1924, the company was using two trucks for the purpose of carting bricks from one place on its premises to another place on the premises known as the brick shed. These trucks were manned by a driver and a helper on each, and, when the noon whistle blew, the truck upon which Bolos was employed was partly filled with bricks at the brick shed, and the driver and Bolos left the truck there to go for lunch. Bolos ate his lunch in the barn hard by the garage of the company and on its premises, as was customary with some of the workmen. The other truck was in the garage during the noon hour. This garage was used for housing the trucks that were not in operation in the yard. After the whistle blew at 12:30 to resume work at the termination of the lunch hour, the truck which was in the garage started to go to the brick shed, and Bolos, following the truck out of the garage, jumped on the running board to ride back to his truck. To reach it at the brick shed, which was about 600 feet from the garage, the truck traversed in part a public street abutting and paralleling the premises of the company. When the truck turned off the street to go into the yard, Bolos was thrown from the running board and sustained injuries which resulted in his death.

The prosecutor attacks the findings of the Workmen's Compensation Bureau and the determination of the common pleas court, on the ground that the accident which resulted in the death of Bolos was not one which arose out of and in the course of his employment. We think that contention is not well founded either in law or in fact.

The prosecutor argues that "the employment did not begin until he (decedent) reached his truck at the brick shed." But we think that is not so. He was already on the premises. His working time, or time of employment, began when, upon the expiration of the noon recess, he left the barn for the purpose of getting back to that part of the premises where his truck was located. Terlecki v. Straus, 85 N. J. Law, 454, 89 A. 1023, affirmed 86 N. J. Law, 708, 92 A. 1087.

It is argued that it was negligence on his part to jump on the running board of the truck. But negligence does not bar recovery in a proceeding such as this under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 136). Taylor v. Seabrook, 87 N. J. Law, 407, 94 A. 399.

It is contended that the decedent had notice that no one except the drivers were to ride upon the trucks; but we find no satisfactory evidence of any such notice.

It is argued that his place of duty was at the truck at 12:30 o'clock, when the whistle blew, and, because of his failure to be there at that time, the employer was relieved of...