Bryn v. Cent. R. Co. of N.J.

• Decision Date: 27 March 1935
• Docket Number: No. 232.,232.
• Citation: 177 A. 857
• Parties: BRYN v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

177 A. 857

BRYN

v. CENTRAL R. CO. OF NEW JERSEY.

No. 232.

Supreme Court of New Jersey.

March 27, 1935.

Certiorari to Court of Common Pleas, Hudson County.

Proceeding under the Workmen's Compensation Act by Anna Bryn against the Central Railroad Company of New Jersey. To review a judgment of the Court of Common Pleas reversing a decision of the Workmen's Compensation Bureau dismissing the petition, the respondent prosecutes certiorari.

Judgment of Common Pleas Court reversed, and judgment of bureau affirmed.

Argued October term, 1934, before HEHER and PERSKIE, JJ.

William F. Hanlon, of New York City (Charles E. Miller, of New York City, of counsel), for prosecutor.

Archie Elkins, of Jersey City, for respondent.

PERSKIE, Justice.

The question involved in this workman's compensation case is: Did the accident, as a result of which the employee died, arise out of and in the course of his employment with the prosecutor? The bureau held that it did not. The court of common pleas of Hudson county held that it did; in that it concluded that the widow was entitled to the benefits of the act, and accordingly reversed the dismissal of the petition. In order to determine the propriety of the respective disposition by each tribunal, as aforesaid, it becomes necessary in this case to determine whether the deceased had the right to be at the place of the accident. The petitioner alleged, under question 16 (Where did the accident happen?), "Lehigh Valley Railroad Trestle, Johnson Avenue, Jersey City." Prosecutor, respondent below, in answer to the same question, replied that the accident happened "on a railroad trestle in Jersey City, not the property of respondent." That respondent's answer is correct is not, as we understand it, in controversy.

The bureau, in its determination of facts and rule for judgment, held as follows:

"That at the time of the accident petitioner's decedent had ceased to work and was on his way home. Two passages were available to him, one was an alleged short cut over the tracks of the Lehigh Valley Railroad Company which was reached after leaving the respondent's premises and walking along a dedicated public thoroughfare, i. e., Communipaw Avenue, Jersey City. The other way available to the decedent was to continue on the public street or streets of Jersey City until he had reached his home. It seems to me that to permit a recovery in a case of this kind where a decedent chooses a dangerous route, and, in fact, trespasses upon a railroad owned by another than the respondent, although there was a perfectly safe way by which to reach his home, would be out of line with all the decisions on this question. The well recognized rule is that when an employee is injured while traveling to or from his place of work, has departed from or has not yet reached the employer's premises, and the means of conveyance is not furnished by the employer, the injury does not arise with the employment. Bradbury's Workmen's Compensation, (3d Ed.) page 468, and the many cases cited."

"In Hills v. Blair, 182 Mich. 20, 148 N. W. 243, where an employee chose to travel along a railroad whereas he could have gone by a more safe route, it was held not compensable."

"In the Bell Case, 238 Mass. 46, 130 N. E. 67, two ways of egress were open, one along the right-of-way which employee chose of his own volition and this case was held not to be compensable."

"In the case of Fox v. Rees & Kirby, Ltd., [1916] W. C. & Ins. Rep. 339, 15 N. C. C. A. 243, the Court denied compensation, holding in part that by walking along the railroad track while there were two less hazardous paths, the employee added peril to the employment."

"In Anderson v. C, B. & Q. R Co., 250 Ill. App. 92, it was held that where an employee chooses his own route to go home and is struck upon a railroad right of way, compensation will be denied."

"In Hoteling v. Standard Oil Co., 6 N. Y. St. Dep. Rep. 308, compensation was denied to an employee who, having completed his day's work, left for home and instead of using the private road he started to walk north on a railroad track when he was struck by a train and killed."

"My own (Referee John C. Wegner) view is that when an employee after working hours, selects a means of reaching home by a short cut for his own personal convenience rather than take the safer course which is open to him, the hazard he encounters on the short cut should not be construed to be within the contemplation of the employer and I will, therefore, grant the motion to dismiss the petition."

The court of common pleas, on the other hand, held that the employee used the route as described for many years, "in accordance with his apparent custom"; that this particular means of egress and ingress by the decedent and other employees of the respondent, and the use of the trestle which was known as the "Interchange" by the respondent to interchange its cars with other railroads, was such a means of exit, which, at the time of the accident, the decedent was using and which he had used uninterruptedly for a period of 18 years, which proof was fully corroborated and which appeared at the end of petitioner's case; "and the Court being of the opinion that such proof was sufficient to show that the petitioner and her children where entitled to the benefits of the New Jersey Workmen's Compensation Act and that the dismissal of the petition * * * was legally erroneous and * * * should be reversed."

The prosecutor relies entirely upon the Court of Errors and Appeals' case of Gilroy v. Standard Oil Co., 107 N. J. Law, 170, 151 A. 598, 599. In the cited case it was held: "* * * The accident did not occur in the course of the plaintiff's employment, for he had ceased the work for which he was employed before the accident and had left the premises of the defendant and was proceeding on his way home. Counsel for the defendant refers to a number of cases in his contention that the common-law courts had no jurisdiction over ...