Fennimore v. Union Constr. & Holding Co.

• Citation: 35 A.2d 32
• Parties: FENNIMORE v. UNION CONSTRUCTION & HOLDING CO.
• Decision Date: 10 December 1943
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

35 A.2d 32

FENNIMORE

v.UNION CONSTRUCTION & HOLDING CO.

New Jersey Department of Labor-Workmen's Compensation Bureau.

Dec. 10, 1943.

Proceedings under the Workmen's Compensation Act by Arthur H. Fennimore, claimant, opposed by Union Construction & Holding Company, employer.

Award for claimant.

MEDINETS, Deputy Commissioner.

A petition was filed in this matter by Arthur H. Fennimore seeking compensation for personal injury sustained on April 17th, 1943, when a car he was driving was struck by a locomotive of the Lehigh Valley Railroad while he was transversing a private road laid from the premises of the respondent to the public highway after the termination of his day's work.

That petitioner sustained his injury, as claimed, is undisputed, as well as the fact that he sustained some percentage of partial permanent disability as the result thereof. The chief contention between the parties is whether the injury in question arose out of and in the course of the employment. R.S.1937 34:15-7, N.J.S.A.

This cause came on for a hearing before me at Somerville, New Jersey, November 19th, 1943, at which time counsel for both sides stated that since there was no dispute about material facts of the case that all of the facts would be stipulated, leaving to the court the legal inferences to be drawn therefrom.

Accordingly, the following stipulation of facts was read into the record:

‘Respondent conducted its business on a large tract of land lying in Bridgewater Township, Somerset County, New Jersey. Its property is surrounded at least to the north, east and west by lands presently owned by Calco Chemical Company of Bound Brook, New Jersey. The lands of Calco Chemical Company extend to the north of this property a distance of approximately 1500 feet to a public highway known as Bound Brook Road. The only means of ingress and egress to the property of the Union Construction and Holding Co. is by means of a dirt road approximately 10 feet wide which runs from the public highway, Bound Brook Road, northerly through the lands presently owned by Calco Chemical to the main gate of Union Construction. This road is a private road and constitutes the one and only means by which persons employed by Union Construction can reach their place of employment. The Union Construction therefore has a right of way, by necessity, over the lands north of its property to the Bound Brook Road or nearest public highway.

‘This private road or way of necessity was intersected by the main lines of three railroad companies. At the northerly end of this road it was intersected at grade by four sets of tracks belonging to the Central Railroad of New Jersey. * * * Approaching the entrance to the property of Union Construction this road was intersected at grade by the main lines of the Reading Railroad and the Lehigh Valley Railroad.

‘* * * On April 17, 1943, petitioner, who was a pump operator for respondent, finished his work at about 11:15 P. M. when he was relieved at his post by another employee who was to take over the next shift. He got into his private car which was parked on the property of respondent and also picked up a co-employee, one George Pinfield, and started to leave the plant. The gate facing the private road was opened by a guard employed by respondent, and petitioner and his passenger proceeded north on the private road toward the public highway known as Bound Brook Road. As petitioner reached the west bound track of the Lehigh Valley Railroad, a distance of approximately 180 feet from the gate, his car was struck by a west bound train of the Lehigh Valley Railroad and he suffered various personal injuries for which this petition is filed. His passenger, George Pinfield, was killed instantly.’

There was also submitted in evidence by consent two longhand sketches (Exhibit P-1 and P-2) which graphically depict the location of the private road with respect to respondent's property, the fence and gate by which its property is separated from the surrounding property and the proximity of the railroad crossing to the entrance of respondent's premises. Three photographs (Exhibits P-3-4 and 5) were also submitted by consent and they corroborated the facts depicted in the sketches.

In view of the undisputed facts a determination of the compensability of this case resolves itself into a question of law. A number of cases from this and other jurisdictions was submitted for my consideration by counsel for petitioner but none of the New Jersey cases appear to be exactly in point. The case at bar, therefore, seems to be one of novel impression in this state.

The present case is clearly distinguishable from Bryn v. Central R. Co., 114 N.J.L. 534, 177 A. 857, affirmed Court of Errors and Appeals 115 N.J.L. 508, 180 A. 874, in which the employee after leaving his employer's premises walked along a public street and then attempted a short cut over the tracks of the railroad in order to reach his home, a practice which he had apparently followed for many years even though there was another way over the public streets for him to reach his home. The employee in the Bryn case was, as our Court of Errors and Appeals took occasion to point out in the recent case of Fury v. New York & Long Branch R. Co., 127 N.J.L. 354, 22 A.2d 286, 287, in distinguishing that case (the Fury case) from the Bryn case: ‘We have not overlooked our holding in the case of Bryn v. Central R. Co. of New Jersey, 114 N.J.L. 534, 177 A. 857, affirmed 115 N.J.L. 508, 180 A. 874. That case is clearly distinguishable on the facts. In that case deceased employee ‘chose a dangerous route’ when there was a ‘perfectly safe way by which he could have reached his home.’ He was not where, under his contract of employment, he ‘had the express or implied right to be.’ He was a trespasser.'

Obviously the employee in this case was not a trespasser on the railroad property in question, nor was he choosing the more dangerous of two or more ways to reach the public highway. He was pursuing the one and only road which led from his place of employment to the public road.

In the case of McMillin v. Calco Chemical Co., Inc., 15 N.J.Misc. 68, 188 A. 694, 695, the employee after finishing his day's work got into his car and drove along a road on the employer's premises which was intersected by a right of way of the Central R. Co. and at that point was run down by a train. In holding that the accident arose out of and in the course of the employment Chief Justice Brogan for the Supreme Court said:

‘* * * In the brief of the prosecutor, passing mention is made that the accident did not occur on the premises of the employer, but on the tracks of the railroad company. There is no merit whatever to this argument. The roadway leading into the plant, laid out as it is over the lands of the employer, was built for the convenience and use of those coming to or leaving the plant. The railroad right of way is laid out across these privately owned lands.

‘The employer owns the land on each side of the railroad right of way and employees parked automobiles on the land between the railroad tracks and the plant of the employer, or on the land between the railroad tracks and the public highway * * *.’

The distinction made between the McMillin case and the present case is that the road which intersected the railroad's right of way was owned by the employer, whereas in the present case the road was on the property of another. This appears to me to be a distinction without a difference, since it is conceded that the employer in this case had a right of way by necessity over the road and for the purposes of ingress and egress it was as much a part of his property as if he owned it.

The case of Fury v. New York & Long Branch R. R. Co., 126 N.J.L. 25, 16 A.2d 544, 546, affirmed Errors and Appeals 127 N.J.L. 354, 22 A.2d 286, seems to come closest to the situation at bar and would be controlling except that our Supreme Court found certain other factors beside the selection of a direct route over the property of another from the place of employment to the public road which indubitably placed the employee in the ambit of hie employment at the time of the injury. However, the following excerpts from the opinion for the Supreme Court by Justice Heher would indicate pretty clearly that the case at bar is at least within the dicta of the opinion.

‘* * * Prosecutor's regular working hours were from 8 A. M. to 5 P. M. On the day in question, at 5 P. M., or within a few minutes thereafter, he walked from the tower across the tracks of the Long Branch Company and thence across the track of the Central Company to the substation. He had reason to believe that the mechanism there required adjustment, and, finding that this was so, he labored for an hour on the generator and commutator. He then proceeded northeast between the rails of the Central Company's single track (the ground was covered with a foot of snow and ice, and the cleared track afforded the only pathway), intending to leave the right of way about 400 feet from the sub-station for his home nearby. Before he reached that point, he was struck by a train of the Central Company and sustained the disabling injuries for which compensation is...