Hanna v. Erie R. Co.

• Decision Date: 14 November 1930
• Docket Number: No. 223.,223.
• Citation: 152 A. 179
• Parties: HANNA v. ERIE R. CO.
• Court: New Jersey Supreme Court

152 A. 179

HANNA

v. ERIE R. CO.

No. 223.

Supreme Court of New Jersey.

Nov. 14, 1930.

Certiorari to Court of Common Pleas, Passaic County.

Proceeding under the Workmen's Compensation Act by Alice Hanna, for the death of William Hanna, her son, claimant, opposed by the Erie Railroad Company, employer. An award was sustained on appeal to the court of common pleas, and the employer applies for writ of certiorari.

Application denied.

Argued May Term, 1930, before PARKER, CAMPBELL, and BODINE, JJ.

Hobart & Minard, of Newark, for prosecutor.

Alexander M. MacLeod, of Paterson, for defendant.

PER CURIAM.

The prosecutor seeks to review an award of compensation under the statute. Alice Hanna, the defendant, is the mother of the decedent, William Hanna, who was fatally injured on the night of April 5, 1927, while in the employ of the Erie Railroad Company at Seeaucus. Compensation was awarded, and, from the award, an appeal was taken to the court of common pleas.

The common pleas court found that the accident occurred in the course of the employment and arose out of the employment, and that the injury occurred while the decedent was engaged in intrastate commerce.

The findings of fact by the trial judge will not be disturbed, if they are supported by evidence. Geizel v. Regina Co., 96 N. J. Law, 31, 33, 114 A. 328, affirmed 97 N. J. Law, 331, 116 A. 924; Kauffeld v. G. P. Pfund & Sons, 97 N. J. Law, 335, 336, 116 A. 487.

The prosecutor argues that there was no evidence to justify the finding of the court of common pleas that the accident arose out of and in the course of the employment, and that the decedent was not engaged in intrastate commerce.

The deceased had been working for eight or nine days before his death on what is known as cab work. Cab work is said to be the setting of the valves and piston packing in engines. Some of the engines on which he worked were used in the yard and some went out on the side lines. The side lines appear to be the line to Hackensack and the line to Greenwood Lake. It further appears that the deceased worked on the night shift. The cab work was done in the roundhouse or outside the machine shop. It was customary for the employees to eat lunch between 3 and 3:20 a. m. Some of the employees went over to the Y. M. C. A. across the street, while others went into the machine shop where no adequate benches or other facilities were provided for them, and ate their lunch wherever it might happen to suit them. In the machine shop was a planer, which was somewhat out of repair, and would start occasionally, if the power was still on, without the application of manual manipulation. Sometimes the employees sat on the planer. Although the foreman does not appear to have been in the machine shop at lunchtime, still the custom of eating lunch in that shop seems well established and the use of the planer as an occasional seat was also established. No signs were displayed forbidding the men from sitting where they chose.

The deceased sat upon the planer—a friend, was already there. The power was still on, and the machine apparently commenced operations without any one moving the lever designed to put it in motion. The young man was cruelly injured and died almost immediately.

Within our decisions there was sufficient evidence of the intrastate character of the work to justify the conclusions of the common pleas court. In Bissett v. Lehigh Valley R. R., 102 N. J. Law, 283, 132 A. 302, affirmed 103 N. T. Law, 172, 131 A. 915, it was held that a railroad employee, who at the time of Lis injury was repairing a pump on an engine used in shifting cars in the railroad yard, was not engaged in interstate commerce; his general work being the repair of engines and cars. Mr. Justice Katzenbach, in writing the opinion in that case, exhaustively reviews the prior decisions. In Herzog v. Hines, 95 N. i. Law, 98, 112 A. 315, a car repairer was repairing a freight car attached to several other cars in the freight yard. Since the instrument of commerce was entirely out of commission, the work was not being done in interstate commerce. In Matthison v. Payne, 98 N. J. Law, 87, 118 A. 771; Id., 99 N. J. Law, 285, 122 A. 926, a roundhouse employee engaged to take care of engines used in interstate and intrastate commerce was held employed in both. In Price v. Central Railroad Company, 99 N. J. Law, 425, 123 A. 756, an employee was held not engaged in interstate commerce, who was employed in repairing cars used in both sorts of commerce. In Jayson v. Pennsylvania, 101 N. J. Law, 159, 127 A. 169, a shop employee repairing a car withdrawn from interstate commerce for repairs was held not engaged in such commerce. See, also, Hart v. Central R. R. (N. J. Sup.) 147 A. 733, affirmed (Err. & App.) 151 A. 906, Oct. 20, 1930.

The mere circumstances that the employee was eating his lunch does not seem to alter the case. Zabriskie v. Erie R. R., 86 N. J. Law, 266, 92 A. 385, L. R. A. 1916A, 315; Terlecki v. Strauss, 85 N. J. Law, 454, 89 A. 1023, 1024, affirmed 86 N. J. Law, 708, 92 A. 1087.

In Terlecki v. Strauss, supra, a girl employed in a woolen factory had left her machine preparatory to going home. She was combing wool from her hair and was standing before a mirror for that purpose. It appeared that other girls had done likewise, and that the practice was not forbidden. The injured girl's hair got in the moving machinery and she was badly injured. Mr. Justice Swayze said: "It would be entirely too narrow a construction to limit the benefit of the statute to the time the workman is actually employed at his machine. He must have time to reach his machine and to get away from his employer's premises. In fact, it is a necessary implication of the contract of employment that the workman shall come to his work and shall leave with reasonable speed when the work is over. The preparation reasonably necessary for beginning work after the employer's premises are reached and for leaving when the work is over is a part of the employment. A workman is none the less in the course of employment because he is engaged in changing his street clothes for his working clothes, or in changing his working clothes for his street clothes. In the present case in was reasonably...