Zabriskie v. Erie R. Co.

• Decision Date: 16 November 1914
• Docket Number: No. 121.,121.
• Citation: 86 N.J.L. 266,92 A. 385
• Parties: ZABRISKIE v. ERIE R. CO.
• Court: New Jersey Supreme Court

92 A. 385

86 N.J.L. 266

ZABRISKIE

v. ERIE R. CO.

No. 121.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Catherine Zabriskie, executrix, etc., of John H. Zabriskie, deceased, against the Erie Railroad Company. From a judgment of the Supreme Court (88 Atl. 824), affirming a judgment of the common pleas for plaintiff, defendant appeals. Affirmed.

Collins & Corbin, of Jersey City, for appellant.

Charles B. Dunn, of Paterson, for respondent.

PARKER, J. This case arose under the Workmen's Compensation Act of 1911. The question raised is the usual one, viz.: Whether the deceased came to his death by reason of an accident arising out of and in the course of his employment. There is no question whatever but that the deceased was killed by an accident, but the appellant insists that the accident did not arise out of the employment, nor did it arise in the course of the employment, and the question before the Supreme Court was whether there was any evidence before the trial court to justify such a finding. If there was such evidence, the finding of the court of common pleas is conclusive. Sexton v. Newark District Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451, affirmed 91 Atl. 1070; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl 458. The Supreme Court seems to have gone a step further and to have made substantially its own finding upon the evidence. This was unnecessary, but, as it necessarily included a finding that there was evidence to support the finding of the trial court, which is sufficient for an affirmance, we do not concern ourselves with the facts further than to ascertain whether there was evidence in the case which the trial court was entitled to take hold of as the basis for its finding of fact as above.

The opinion of the Supreme Court does not state the evidence with entire accuracy. The deceased was not obliged to cross the railroad, nor was he injured because of so crossing it, but the accident occurred in this way: The tracks of the defendant, Erie Railroad Company, run through Paterson from north to south, crossing Market street, which runs east and west. The Paterson station of the appellant was in the southwesterly angle formed by Market street and the said tracks. The Morris Beef Building, where the deceased was regularly employed by the appellant as a carpenter, was in the northwesterly angle of Market street and the railroad, and consequently the deceased, in order to reach the station, had to cross not the railroad, but Market street, which was a public highway and the principal artery of traffic in Paterson. There was no toilet in the Morris Beef Building, and of course the defendant's employes had to go somewhere to satisfy the calls of nature. Apparently the most convenient place, and the place where, as the trial court was justified by the evidence in finding, they had been for some time accustomed to going, was the men's toilet room in defendant's railroad station across Market street. There was evidence that this was the only place that they had to go to, and that for a year or more prior to the accident it was the habitual practice of defendant's employes working in the Morris Beef Building to use the station toilet for their personal needs. At the time of the accident, the deceased was on his way from the Beef Building across Market street, and bound for the station toilet, when he was struck by an east-bound automobile on Market street, and thrown or carried over on the railroad track, where he was again struck by a north-bound train that was just starting from the station. This occurred about 11 a. m.

There can be no doubt that the trial court was fully justified in finding that the accident occurred in the course of the employment of the deceased; that it took place during the regular working hours and while he was answering a call of nature, which is liable to occur at any time. It was argued that he was not doing his employer's work...