Lehigh Nav. Coal Co. v. McGonnell

• Decision Date: 23 June 1938
• Docket Number: No. 211.,211.
• Citation: 120 N.J.L. 428,199 A. 906
• Parties: LEHIGH NAV. COAL CO. v. McGONNELL et al.
• Court: New Jersey Supreme Court

199 A. 906

120 N.J.L. 428

LEHIGH NAV. COAL CO.

v. McGONNELL et al.

No. 211.

Supreme Court of New Jersey.

June 23, 1938.

BEOGAN, C. J., dissenting.

Proceeding under the Workmen's Compensation Act by Mary J. McGonnell, claimant, opposed by the Lehigh Navigation Coal Company, employer. To review a judgment of the Court of Common Pleas in and for the County of Union affirming an award of compensation of the Workmen's Compensation Bureau, the employer brings certiorari.

Judgment affirmed.

Argued May term, 1938, before BROGAN, C. J., and BODINE and HEHER, JJ.

Maurice J. McKeown, of Newark, for prosecutor. John C. Stockel, of Perth Amboy, for respondents.

BODINE, Justice.

The writ of certiorari in this case brings up a judgment of the court of Common Pleas affirming an award of compensation in the Workmen's Compensation Bureau. Most of the facts were stipulated. John J. McGonnell, petitioner's deceased husband, was a coal inspector in the employ of the Lehigh Navigation Coal Company. He commuted from his home in Elizabethport to his place of work in Jersey City, and his employer reimbursed him for the cost of the commutation tickets purchased. This had been the practice for sometime.

The manager of the prosecutor's New York office testified, that when the principal business of the company was transferred from Elizabethport to Jersey City, he directed the deceased to take the Central Railroad train from Elizabethport to Jersey City, and promised that the company would give him a commutation ticket for that purpose and that thereafter each month a voucher was given to reimburse him for the cost of the ticket. The deceased's duty was to inspect coal before it was shipped.

The deceased was killed by a train of the Central Railroad Company of New Jersey on March 23, 1936, shortly before he was to entrain for Jersey City in order to inspect coal. His body was found between the northbound and southbound tracks of the seashore division, about 75 feet north of Trumbull Street and between 75 and 100 feet from the main line track to Jersey City.

The space where his body was found was paved and traversable.

In the bureau, the objection was made that the injury was not received in the course of transportation. In Fisher v. Tidewater Building Co., 96 N.J.L. 103, 114 A. 150, affirmed 97 N.J.L. 324, 116 A. 924, the deceased was employed by the Tidewater Company at Gloucester City, N. J. He quit work at the usual time and proceeded to the railroad station in order to board a train to go to Camden on his way home. While attempting to board the train, he was struck by another train and killed. His employer furnished him with tickets for his transportation on the railroad train. It was there said: "* * * that an employe while on his way to work is not in the course of his employment. * * * [But] where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation, it is held to have arisen out of and in the course of the employment. This rule has the support of English and American cases. True it is in this case, the injury did not happen while being transported, but while in the act of boarding the train; but this we think is a difference without a legal distinction."

In Laverty v. Ludington Management, Inc., 110 N.J.L. 410, 166 A. 137, the transportation was furnished by the employer. See also Alberta Contracting Corporation...