Vincelli v. N.J. Cent. R. Co., N.J. S. Div.

• Decision Date: 05 June 1923
• Docket Number: No. 207.,207.
• Citation: 121 A. 132
• Parties: VINCELLI v. NEW JERSEY CENT. R. CO., NEW JERSEY SOUTHERN DIVISION.
• Court: New Jersey Supreme Court

121 A. 132

VINCELLI

v. NEW JERSEY CENT. R. CO., NEW JERSEY SOUTHERN DIVISION.

No. 207.

Supreme Court of New Jersey.

June 5, 1923.

(Syllabus by the Court.)

Proceedings under the Workmen's Compensation Act by John Vincelli, opposed by the New Jersey Central Railroad Company, New Jersey Southern Division, employer. From an order of the county court of common pleas reversing an order of the workmen's compensation bureau dismissing the petition, the employer brings certiorari. Judgment of the court of common pleas reversed, and that of the workmen's compensation bureau affirmed.

Argued February term, 1923, before KALISCH, BLACK, and KATZENBACH, JJ.

Charles F. Sexton, of Long Branch, for petitioner.

Willam A. Barkalow, of Freehold (Geo. Holmes and DeVoe Tomlinson. both of New York City, of counsel), for respondent.

KATZENBACH, J. The writ of certiorari in this case brings to this court for review a judgment of the court of common pleas of the county of Monmouth, rendered in a workmen's compensation case. John Vincelli was an employee of the Central Railroad Company of New Jersey. On October 29, 1920, he was working on the main running tracks of the railroad company at Low Moor, N. J., over which passed intrastate and interstate traffic. The special work in which, with others, he was engaged, was renewing cross-ties. At the place Vincelli was working a private road crossed over the tracks. It was necessary, in order to renew the ties, to take up the crossing planks, and after the new ties had been laid to relay the planks. Vincelli was replacing one of these planks, and while in the act of driving a spike through the plank the head of the spike broke off, flew up, and struck him in the eye, causing the loss of the sight of his eye. Vincelli filed a petition under the provisions of the Workmen's Compensation Act (Act April 4, 1911 [P. L. 134], as amended by Act April 1, 1913 [P. L. 302]). A hearing on this petition was had before the Workmen's Compensation Bureau. The deputy commissioner who heard the case dismissed the petition and held that the bureau had no jurisdiction, as Vincelli was at the time of the accident engaged in interstate commerce. Vincelli then appealed to the Monmouth county court of common pleas. The learned trial judge who heard the appeal held that' at the time of the accident Vincelli was not engaged in interstate commerce. He supported this view from that portion of the opinion in the case of Swank v. Pennsylvania Railroad Co., 94 N. J. Law, 546, 111 Atl. 44, which reads:

"The test in such cases is always whether the particular work upon which the employee was engaged at the very time of the accident was a part of the interstate commerce in which the carrier was engaged."

This passage was taken, as stated in the opinion, from the leading case of Pedersen v. D. L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

The conclusion reached by the court below in applying this test to the facts of the case was that when Vincelli was driving the spike through the plank of the private crossing, for the purpose of fastening it to the tie below, his act had nothing to do with the interstate commerce of the railroad company, or with anything which enabled it to function in that respect, as the relaying of the plank was merely for the convenience of the individual who used the private crossing.

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