Fenton v. Margate Bridge Co.

• Decision Date: 02 February 1953
• Docket Number: No. A--97,A--97
• Citation: 24 N.J.Super. 450,94 A.2d 848
• Parties: FENTON v. MARGATE BRIDGE CO.
• Court: New Jersey Superior Court — Appellate Division

Page 450

24 N.J.Super. 450

94 A.2d 848

FENTON v. MARGATE BRIDGE CO.

No. A--97.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 19, 1953.

Decided Feb. 2, 1953.

Alexander K. Blatt, Atlantic City, for petitioner-respondent.

S. P. McCord, Jr., Camden (Starr, Summerill & Davis, Camden, attorneys; William F. Hyland, Camden, on the brief), for respondent-appellant.

Before Judges EASTWOOD, BIGELOW and JAYNE.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

In this workmen's compensation case the dispositive question is whether the employee's injuries were caused by an accident that arose out of and in the course of his employment. On May 11, 1951, at about three minutes before 4:00 p.m., the petitioner-respondent Ezra A. Fenton, employed by the respondent-appellant Margate Bridge Company as a bridge tender and toll collector, suffered injuries when, at or near the bridge entrance on Jerome Avenue, in an attempt to negotiate his automobile around a sharp turn in the highway, he discovered the brakes were ineffective. In an endeavor to bring his car under control, the overhang of his shoe pressed down on the accelerator, causing the automobile to gain increased momentum, whereupon he lost control of the car. It crashed through a guard rail at a point about three feet on the Margate bridge, and struck a pole on the boundary line of the bridge company's property and that of an unestablished owner. At the time Fenton was operating his privately owned automobile on his way to his place of employment, at which he was due at 4 o'clock.

The employer was the owner of the toll bridge and had constructed a garage for the convenience of its employees for the parking of their automobiles, wherein the petitioner had customarily parked his car for some time prior to the accident.

The Compensation Bureau dismissed the petition on the ground that the accident did not arise out of and in the course of the employment. On appeal the County Court reversed, from which judgment the employer appeals.

The employer contends that the petitioner's injuries did not result from an accident arising out of and in the course of his employment and that the County Court erred in determining that the accident in question occurred on the bridge property of the respondent. The petitioner asserts that the employer did not, either in the proceedings before the Bureau or the County Court, raise any question as to where and when the injuries were sustained; that the only question the employer raised in the County Court was whether or not the injuries were compensable.

R.S. 34:15--7, N.J.S.A., provides 'compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment * * * without regard to the negligence of the employer, * * *.' In Bryant, Adm'x, v. Fissell, 84 N.J.L. 72, at pages 75--76, 86 A. 458, at page 459 (Sup.Ct.1913), we find this definition of 'an accident':

'* * * (a) an accident, (b) arising out of, and (c) in the course of, his employment. Even though the injury arose out of and in the course of the employment, if it be not an 'accident,' within the purview of the act, there can be no recovery. * * * an 'accident' is an unlooked for mishap or untoward event which is not expected or designed. * * *'

To establish a compensable injury by accident it must be proved that it not only arose out of the employment, but also in the course of the employment. 'The fact that injury was suffered during the course of work does not Per se entitle one to the benefits of that act. It must also appear that it arose out of the employment.' Seiken v. Todd Dry Dock, Inc., 2 N.J. 469, 474, 67 A.2d 131, 133, (1949). The compensation statute is a remedial law of prime import and should be liberally construed. Fisher v. Tidewater Building Co., 96 N.J.L. 103, 105, 114 A. 150 (Sup.Ct.1921); affirmed 97 N.J.L. 324, 116 A. 924 (E. & A. 1922); Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948). An accident arises out of the employment if in some manner it is reasonably incident to the employment. The injuries need not have been foreseen. It is sufficient if they flowed as a rational consequence from a risk connected with the employment. Sanders v. Jarka Corp., supra. If the employment is a contributing cause to the accident the statutory requirement is met. Newcomb v. Albertson, 85 N.J.L. 435, 89 Newcomb v. Albertson, 85 N.J.L. 435, 89 need not be the sole or proximate cause of the injury; it is sufficient if it is a necessary factor leading to the accident. Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023 (Sup.Ct.1914), affirmed 86 N.J.L. 708, 92 A. 1087 (E. & A. 1914). 'The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment. This general rule is subject, however, in most jurisdictions, to certain well- recognized exceptions which depend upon the nature, circumstances, and conditions of the particular employment, and the cause of the injury.' 58 Am.Jur., Workmen's Compensation, sec. 217, pp. 723--724. In re Paulauskis' Case, 126 Me. 32, 135 A. 824 (Me.Sup.Jud.Ct.1927); Watson v. Grimm, 90 A.2d 180 (Md.Ct.App.,1952). See 10 NACCA Law Journal, Workmen's Compensation, pp. 93--95. If the employee is injured while passing, with the express or implied consent of the employer, to or from his work either by a way over the employer's premises, or by a way over those of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of the employment. 58 Am.Jur., Workmen's Compensation, supra, illustrated by the cases of Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 680 (1933); Zabriskie v. Erie R.R. Co., 86 N.J.L. 266, 92 A. 385, L.R.A.1916A, 315 (E. & A. 1914); Boles v. Trenton Fire Clay, &c., Co., 102 N.J.L. 479, 133 A. 764 (Sup.Ct.1926) ; affirmed 103 N.J.L. 483, 135 A. 915 (E. & A.1927); McCrae v. Eastern Aircraft, 137 N.J.L. 244, 59 A.2d 376 (Sup.Ct.1948); Arrington v. Goldstein, 23 N.J.Super. 103, 92 A.2d 630 (App.Div.1952); Garguilo v. Garguilo, 24 N.J.Super. 129, 93 A.2d 598 (App.Div.1953). A turnpike or toll road is a public highway, established by public authority for public use, and is to be regarded as a public easement and not as private property, the acceptance by a corporation of a franchise to construct such a road and the operation thereof constituting a dedication of the same as a public highway. As in the case of any other public highway, it may be used by every one, subject, however, to the payment of toll, and may not be lawfully closed against use by the public. 54 Am.Jur., Turnpikes and Toll Roads, Sec. 2, p. 494.

The employee argues that 'all of the cases are in accord that if it was a necessary means of ingress or egress to the premises in question and the employee had reached his place of employment, the injuries he sustained were compensable.' The employer contends that the causative factor of the accident was not incidental or peculiar to the petitioner's employment; therefore, the accident did not arise out of and in the course of the employment; that the accepted general rule is that compensation will not be awarded to a workman for injuries resulting from accidents happening while he is on his way to or from work and that the factual situation in the present case does not bring it within the recognized exceptions to the general rule; that the petitioner's duties as a toll collector, and the use of his automobile, are utterly unrelated; that 'he could have used other means of transportation without affecting his duties in any sense'; that he had not yet entered upon his employment at the time of the accident, but was injured in negotiating a turn in the highway, being confronted with a condition not in any sense peculiar to his employment or a greater hazard to him in the fulfillment of his employment obligations than to the members of the general public likewise using the highway and the bridge.

The record discloses that the two approach roads to the bridge connected two parallel highways and that at the place where the employee lost control of his car the road makes a 45 or 90 degree turn. The employee contends that the hazard was peculiar and abnormal to him, in that it was the only means of ingress and egress provided by the employer by which he could reach his place of employment where he could park his automobile in the employer's garage. The general rule is that if in the use of a public highway the hazard confronting an employee is no greater than that to which all users of a public highway are confronted, then injuries resulting from an accident suffered by an employee and caused partly, at least, by such a hazard, are not compensable. The employee here stresses the fact that the highway where the hazard is located and the bridge across which the employee was required to travel to reach the garage in question, were privately owned and...