Hart v. Cent. R. Co. of N.J.

• Decision Date: 07 November 1929
• Docket Number: No. 227.,227.
• Citation: 147 A. 733
• Parties: HART v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

147 A. 733

HART

v. CENTRAL R. CO. OF NEW JERSEY.

No. 227.

Supreme Court of New Jersey.

Nov. 7, 1929.

Proceedings under the Workmen's Compensation. Law by Stella Hart for the death of her husband, opposed by the Central Railroad Company of New Jersey, employer. An award of a commissioner was affirmed, and the employer brings certiorari. Affirmed.

Argued May term, 1929, before TRENCHARD, LLOYD, and CASE, JJ.

William A. Barkalow, of Freehold (Edwin F. Smith, of Jersey City, of counsel), for prosecutor.

Hershenstein & Finnerty, of Jersey City, for respondent.

LLOYD, J. This is a workmen's compensation proceeding by the widow of Stanley Hart, a car inspector employed by the Central Railroad Company, who was killed while in the performance of his duty. The question in the case is whether there was adequate proof that at the time of his death he was in intrastate service. The case was heard by Commissioner Corbin, who made an award in favor of the widow. This was affirmed by Judge Eagen in the Hudson pleas, and is here for review by certiorari.

We think the result reached below should not be disturbed. Hart was a car inspector, employed by the prosecutor, whose duty it was to inspect cars that came into the yard of the Central Railroad Company in Jersey City. When killed, it could be inferred that he was inspecting, or was about to inspect, cars which came into the yard, and which might be used in interstate or intrastate service or both. It was fairly inferable that he was killed by the movement of a string of empty baggage cars on track No. 2. On this track were cars of the Baltimore & Ohio Railroad Company, the Reading Railroad Company, and of the Central Railroad Company. None of the cars was at the moment in actual service. One of them was marked a "crippled car," which meant that repairs had to be effected, and it was in the vicinity of this crippled car that the deceased was last seen with tools in his hands. Cars were placed on this track for a double purpose: First to be put in condition for service, if out of order; and, second, to await such service as they might be called into, whether in intrastate or interstate work.

The law is settled that the burden is on the petitioner to establish that the accident arose out of and in the course of his employment in intrastate service and was not in interstate service. It is also settled that movable rolling stock that is not in course of interstate service is not engaged in that service, and, the rights of the employees are in such case remitted to the Workmen's Compensation law of the state. As stated by the present Chief Justice in the recent case of Lincks V. Erie R. R., 91 N. J. Law, 166, 103 A. 176, the rule is laid down thus:

"The fundamental question to be now decided, therefore, is whether the engine upon which the decedent had Just finished his work, or that upon which he was about to commence his work,...