Brinsko's Estate v. Lehigh Valley

• Decision Date: 11 October 1917
• Docket Number: No. 57.,57.
• Citation: 90 N.J.Law 658,102 A. 390
• Parties: BRINSKO'S ESTATE. v. LEHIGH VALLEY
• Court: New Jersey Supreme Court

102 A. 390

90 N.J.Law 658

BRINSKO'S ESTATE.

v. LEHIGH VALLEY

No. 57.

Court of Errors and Appeals of New Jersey.

Oct. 11, 1917.

Appeal from Supreme Court.

Suit by the estate of John Brinsko under Workmen's Compensation Act April 4, 1911, as amended by Act April 1, 1913, for compensation to the dependent widow and children of deceased, opposed by the Lehigh Valley Railroad Company of New Jersey, the employer. There was judgment for the estate, which was affirmed by the Supreme Court, and the employer appeals. Judgment reversed for new trial and proper determination of the facts.

Adrian Lyon, of Perth Amboy, for appellant.

Thomas Brown, of Perth Amboy, for appellee.

PER CURIAM. This suit was brought in the Middlesex common pleas under the Workmen's Compensation Act (P. L. 1911, p. 134, amended by P. L. 1913, p. 302) for compensation to the dependent widow and children of John Brinsko, deceased, who met his death by being run over by a ear of the defendant company, of which company he was an employe.

After hearing and argument, the trial judge found that deceased, while in the "course of his employment" with the defendant company, was run over by one of its cars and killed.

One of the defenses interposed was that at the time decedent met his death he was employed in moving ears engaged in interstate commerce, and that therefore the defendant is liable only under the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8007-8605). On this head the trial judge found that, for the purposes of the suit, it was not necessary to determine whether the car which injured and caused the death of the deceased was engaged in interstate commerce at the time.

With this finding the Supreme Court disagreed, but held that the award made by the trial judge in the common pleas was not vitiated on that account, because, on the finding of facts by the judge, the car was not engaged in interstate commerce, nor was the deceased. This was error.

In Dunnewald v. Henry Steers, Inc., 99 Atl. 345, this court held that to warrant a recovery under our Workmen's Compensation Act it must appear that the employe's death was caused (1) by an accident (2) arising out, and (3) in the course, of his employment, and that, all of these essential facts must be found by the trial judge, and must be contained in his written determination.

As a matter of fact the trial judge, in the case at bar, while determining that the deceased's injury occurred in the course of his...