Flanagan v. Charles E. Green & Son

• Decision Date: 21 April 1939
• Docket Number: No. 25.,25.
• Citation: 122 N.J.L. 424,5 A.2d 742
• Parties: FLANAGAN v. CHARLES E. GREEN & SON.
• Court: New Jersey Supreme Court

5 A.2d 742

122 N.J.L. 424

FLANAGAN

v. CHARLES E. GREEN & SON.

No. 25.

Court of Errors and Appeals of New Jersey.

April 21, 1939.

Appeal from Supreme Court.

Proceeding under the Workmen's Compensation Act by Fergus F. Flanagan, employee, opposed by Charles E. Green & Son, employer. From a judgment of the Supreme Court, 121 N.J.L. 327, 2 A.2d 180, which on certiorari affirmed a judgment of the Common Pleas affirming a compensation award except with respect to the measure of compensation, the employer appeals.

Affirmed.

Kellogg & Chance, of Jersey City, R. Robinson Chance, of Jersey City, for respondent-appellant.

Frank G. Turner, of Newark, for petitioner-appellee.

PER CURIAM.

This is a workmen's compensation case. The Bureau found for the petitioner and the Common Pleas affirmed. On certiorari the Supreme Court affirmed the Common Pleas except as to the measure of compensation, and the employer appeals.

The first point urged is that there was no proof of an accident arising out of and in the course of employment. This claim is untenable. It rests on a factual distinction that is obviously frivolous. The employee, as had been the custom, had his lunch on the employer's premises. When he had finished, he proceeded towards another part of the room for the purpose of washing a milk bottle. The power having been turned off, there was a lack of sufficient lighting and while walking through the room he tripped over a stool and fell to the floor, suffering a fracture of the leg. Granting that an employee injured while taking his lunch on the employer's premises in accordance with custom, suffers an accident arising out of and in the course of his employment, the employer here points out that the employee was not so engaged, but was walking through an unlighted portion of the room at the time he sustained his injury. We think this distinction is so obviously unsound as to merit no discussion.

The second point deals with another accident which happened to the employee while confined in the hospital under treatment for the first injury. While the employee was cooperating with the nurses in the removal of bed clothing, he suffered a fracture or dislocation of one of his arms, whereby permanent injury was sustained, and compensation was awarded on the theory that it was directly connected with the first compensable injury. Claiming that the second injury was the result of the negligence of the nurses, the employer invokes the principle of intervening and...