132 A. 302 | N.J. | 1926
This case is before this court upon a writ of certiorari directed to the Court of Common Pleas in and for the county of Essex. The writ brings up the record in a workmen's compensation case. On January 30th, 1923, Burt A. Bissett was an employe of the Lehigh Valley Railroad company. He was foreman at a round house in the Oak Island yard of the Lehigh Valley Railroad Company near Newark, New Jersey. His work was the repairing of engines and cars. In the yard there was an engine used for making up trains. The engine did not leave the yard. It was used only for shifting cars from one place to another in the yard. On January 30th, 1923, this engine, while being used, developed pump trouble. It required repairs. The engineer and fireman so informed Bissett. He told them to place the engine upon track No. 1, which was a track used for placing engines or cars in need of repairs. This track was also used for the usual yard purposes. The engine was placed on this track. Bissett climbed up on the engine for the purpose of making repairs to the pump. While thus engaged he fell from it a distance of twelve to fourteen feet and received injuries from which he died on March 5th, 1923. A helper who had been working with Bissett finished the repairs after the accident. The engine was then again placed in service upon the work, which was interrupted by the pump trouble. The repairs made by Bissett's helper were temporary. The engine was on the day following taken to Jersey City for permanent repairs.
Bissett's widow filed a petition with the workmen's compensation bureau for compensation. A hearing was had before Deputy Commissioner Goas. He held that Mrs. Bissett had sustained the burden of proving that at the time *285 of the accident Bissett was employed within the provisions of the Workmen's Compensation act; that the accident to Bissett and his resulting death arose out of and in the course of his employment, and that the petitioner was entitled to compensation. An appeal was then taken to the Essex County Court of Common Pleas. Upon the testimony taken before the deputy commissioner the Court of Common Pleas affirmed the award of compensation. The Lehigh Valley Railroad Company then made application for a writ ofcertiorari to bring the case to this court for review. The writ was allowed.
The prosecutor advances two grounds for reversing the judgment of the Essex County Court of Common Pleas. The first is that Bissett at the time of the accident was engaged in interstate commerce, and was not, for that reason, within the provisions of the Workmen's Compensation act, and that the petitioner (Mrs. Bissett) did not sustain the burden of proof cast upon her of showing that her husband was within the provisions of said act at the time he received his fatal injury.
The second ground advanced by the prosecutor is that the finding that Bissetts's death was the result of an accident was not justified by the evidence. The second ground we think not difficult of disposition. The evidence is that Bissett, after working some twenty or thirty minutes on the engine, fell, became unconscious, and was taken to the hospital. The workmen who testified to his fall could not tell what was the cause of the fall. The prosecutor argues from this that it must have occurred through illness or faintness. There is no testimony that Bissett was ill or subject to fainting spells. We think from the testimony as to the fall, and the absence of any testimony tending to show that Bissett had any tendency to fall through faintness, that the court was justified in drawing the inference from the facts heretofore recited that the fall sustained by Bissett was an accident.
The question as to whether or not Bissett at the time of the accident was engaged in interstate commerce, and hence *286
not within the provisions of the Workmen's Compensation act, presents a difficult question for decision. The answer seems to us to depend upon whether or not the engine upon which Bissett was working at the time of the accident was then in use in interstate commerce or had been withdrawn from service. If it had been withdrawn from service then this case falls within the doctrine of several cases recently decided in the courts of this state. The leading case in this state on this subject is Herzog
v. Hines, Director General, c.,
The Herzog case was followed in the Court of Errors and Appeals by the case of Price v. Central Railroad of New Jersey,
This case was followed in the same court by the case ofJayson v. Pennsylvania Railroad Co.,
In the present case the Essex County Court of Common Pleas found as a fact "that at the time of the accident Burt *288 Bissett was engaged in the repair of an engine wholly separated from any cars not engaged in any commerce, but withdrawn therefrom for repairs. That the engine was not interrupted in any interstate haul." In other words, he was not engaged in interstate commerce at the time of the accident.
We think there is evidence in the case which supports this finding. When the pump trouble developed and the engine could not be used without repairs, it was detached from all cars and was taken to track No. 1. It certainly was not then engaged in interstate commerce. It was idle and disabled. It had been withdrawn from the use to which it had been put. It had to be repaired before it could be again used. It was so repaired. During the making of these repairs Bissett was injured.
It is settled that where a trial court's findings of fact are supported by evidence they will not be disturbed. Kauffield v.G.F. Pfund Sons,
The judgment here under review will therefore be affirmed.