Tully v. Gibbs & Hill, Inc.

• Decision Date: 01 March 1934
• Citation: Tully v. Gibbs & Hill, Inc., 12 N.J.Misc. 275, 171 A. 313 (N.J. 1934)
• Docket Number: 234
• Court: New Jersey Supreme Court
• Parties: LIDA TULLY AND EDWARD J. TULLY, PETITIONERS-DEFENDANTS, v. GIBBS & HILL, INCORPORATED, RESPONDENT-PROSECUTOR

171 A. 313

TULLY et al.

v. GIBBS & HILL, Inc.

No. 234.

Supreme Court of New Jersey.

March 1, 1934.

Proceeding under the Workmen's Compensation Act by Lida Tully and another, claimants for the death of Thomas F. Tally, opposed by Gibbs & Hill, Inc., employers. To review a judgment of the court of common pleas affirming the finding and determination of the Workmen's Compensation Bureau in favor of claimants, employers bring certiorari.

Writ dismissed, and judgment affirmed.

Argued October term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Cohen & Klein, of Newark (Philip Klein, of Newark, of counsel), for prosecutor.

Harry Unger, of Newark, for defendants.

PER CURIAM.

This writ of certiorari brings up for review a judgment of the Hudson county court of common pleas affirming the finding and determination of the Workmen's Compensation Bureau in a workmen's compensation case. The following are the facts:

Thomas F. Tully was employed by the prosecutor, Gibbs & Hill, Inc. (contractors at this time and place for the Pennsylvania Railroad Company), as a watchman, and on the morning of June 22, 1932, was found dead at or near the place of his employment on tracks of the Pennsylvania Railroad Company, at a point known as Journal square, Jersey City. His death resulted from electrification, brought about by contact with a "third rail." His body was discovered at about C o'clock in the morning of the day in question. No eyewitness of the occurrence was produced at the hearing.

The prosecutor of the writ has set down sixteen reasons for reversal. However, the case is argued under three headings: First, that the accident did not arise out of the employment; second, that the trial court erroneously permitted a witness, Clark, to answer a question on his direct examination as to what the duties of the deceased were; and, third, that the amount allowed in compensation is erroneous.

It is not disputed but that the deceased died of an accident. The prosecutor contends that the accident did not arise out of the employment it is necessary to briefly discuss the facts and circumstances surrounding the occurrence. The property of the employer, which it was the decedent's duty to guard, was placed on the northerly side of what may be called the Pennsylvania Railroad "cut" in the vicinity of Journal square. It consisted of cables, a hoist, and a pump. The first three sets of rails on the northerly side of this railroad right of way are not electrified, but are used for steam trains; the next seven sets of rails are used by Hudson & Manhattan Railroad trains, and all are equipped with a "third rail," with the exception of one set of rails furthest south.

The decedent was found with his left shoulder in contact with a "third rail"; his right shoulder being caught under the guard of the same rail. The medical testimony established that his death was due to shock. During the night, according to the evidence, there was a heavy downpour of rain.

On this first point, much testimony has found its way into the record as to what the decedent was doing immediately prior...