Colucci v. Edison Portland Cement Co.

• Decision Date: 14 June 1920
• Docket Number: No. 40.,40.
• Citation: 111 A. 4
• Parties: COLUCCI v. EDISON PORTLAND CEMENT CO.
• Court: New Jersey Supreme Court

111 A. 4

COLUCCI

v. EDISON PORTLAND CEMENT CO.

No. 40.

Court of Errors and Appeals of New Jersey.

June 14, 1920.

(Syllabus by the Court.)

Appeal from Supreme Court.

Proceedings by James Colucci under the Workmen's Compensation Act to obtain compensation for the death of Leo Colucci, opposed by the Edison Portland Cement Company, employer. An award was affirmed on certiorari (108 Atl. 313), and the employer appeals. Reversed.

William H. Morrow, of Belvidere, for appellant.

George M. Shipman, of Belvidere, for respondent.

WHITE, J. This is an appeal from a judgment of the Supreme Court, affirming an award by the court of common pleas of Warren county of compensation under the Workmen's Compensation Act (P. L. 1911, p. 134) to the plaintiff for the death of his 21 year old son, Leo, upon whose wages plaintiff was proved to be partially dependent. The essential circumstances or facts, as established by the findings of the common pleas court and the undisputed testimony, were as follows:

Leo, a general utility laborer in defendant's cement works, had been at work before the accident (in accordance with his employment) in shoveling away broken rock or cinders, which spilled from a conveyer belt moving through an inclosed tunnel. The work was very trying, because of the dust and dirt and of the heat, and it was necessary for the men so employed to go out of their respective tunnels to seek fresh air and rest for a few minutes "now and then," reentering the tunnel and resuming the shoveling, however, "in five or ten minutes," so as to prevent an accumulation of the spillings from clogging up the tunnel and stopping the running of the conveyer belt. Leo was working on the night shift, which commenced at 6 p. m. and ended at 7 a. m. Some time between 1:34 a. m. and 2:30 a. m. he left his tunnel and went to the dryer house of his employer's plant, about 100 yards away, which house he entered and lay down upon a pile of brick and went to sleep. His time-card in the company time clock was punched at 1:34 a. m., which, if he punched it, would indicate that he terminated his work for that night at that time. There was no evidence as to who punched this card, however, and the learned trial judge made no finding upon this point. At 3:45 a. m. the assistant foreman, Sabo, one of whose duties was to keep the men at their work, found Leo's conveyer clogged with an accumulation of spillings, wont to look for him, found him sleeping in the dryer house, tried to awaken him, to get him to go back to his work, but was unsuccessful, and finally went himself and shoveled out the tunnel, so the conveyer could run. At about 5 a. m. Sabo again found this tunnel clogged up, and again himself shoveled it out, and then at 5:30 a. m. went over to the dryer house and asked Jim, the fireman, if Leo was still asleep in there, and was told that he was, and said, "Come on; I wake him up, and you see some fun," or words to that effect, and took a brick (one witness thought it was an iron bolt) and climbed up some outside tower stairs alongside an adjoining building, and threw the brick down on the corrugated iron roof of the dryer house, so as to make a big noise and to shake the soot and "black stuff" down on the sleeping man, in order to give him a scare. This was within a few minutes of quitting time, and Sabo did not wait and tell Leo to get back to work, but ran down the stairs and slipped away, so that Leo would not see who it was that played the joke upon him. Sabo was asked on cross-examination if his purpose was not to get Leo back to work, but answered, "Well, it was about quitting time." Unfortunately there was a rusty hole or weak spot in the roof, and the brick struck and went through it, and hit Leo in the stomach, so that he died the next day.

Two questions are presented by these facts, namely: Did the accident arise out of the employment, and, if so, was it in the course of the employment? Both must be answered in the affirmative to warrant the award. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Hulley v. Moosbrugger, 88 N. J. Law, 61, 95 Atl. 1007, ...