93 N.J.L. 414 | N.J. | 1919
The opinion of the court was delivered by
Martin T. Carberry, who was employed as a baggage agent by the Delaware, Lackawanna and Western
The railroad company filed an answer to the petition denying the application of the Mew Jersey Workmen’s Compensation act, specifically setting forth that at the time and place of the injury and death of Carberry, both he and the company were engaged in interstate commerce, and that therefore the petitioner’s sole remedy was under the Eederal Employers’ Liability act of 1908. Upon the bearing the Common Pleas judge found that “Carberry was engaged in intrastate business at the time of his said injury,” and therefore awarded the petitioner the compensation allowed under the Mew Jersey statute. The company thereupon caused such.award to be reviewed in the Supreme Court, and that tribunal, after an examination of the testimony sent up, determined that the finding of the Common Pleas that the decedent was engaged in intrastate commerce had no support in the testimony submitted, but that, on the contrary, the proofs demonstrated that he was then engaged in interstate commerce. This fact being* found by the Supreme Court, the judgment helow was reversed upon the ground that the petitioner’s only remedy was under' the federal statute. The present appeal is from the judgment of the Supreme Court, which we think must he affirmed.
We think there is no merit in the contention of the appellant that it was not open to the Supreme Court, on the record before it. to determine that the decedent, at the time of the accident, was engaged in interstate commerce.
This contention rests mainly, if not wholly, upon a remark made by the company’s attorney at the hearing in the Common Pleas Court, hereinafter quoted. In an effort to confine the proof at the hearing to the issue raised by the pleadings the attorney admitted that lire appellant had been appointed administratrix; that the decedent was killed while in the
He then made the further statement, on which the appellant relies for reversal, that: “I think that makes a prima facie ease on the part of the petitioner without any proof on the part of the petitioner unless she desires to offer any evidence.” Whereupon counsel for the petitioner remarked.that “I agree with counsel that that establishes a prima facie case.”
The company’s attorney then produced testimony (and the only testimony in the case upon that issue) proving conclusively (as- we will hereafter show) that the decedent at the time of the accident was engaged in interstate commerce.
In thus going forward with his proof he assumed a burden which the law did not cast upon him. The rule is that the burden is upon the petitioner in the court of first instance to prove a case within the state statute — that is, to show, affirmatively, that the decedent was engaged at the time of the accident in a service which was not regulated by' the federal statute, for that fact is not to- be presumed in the absence of proof. Lincks v. Erie Railroad Co., 91 N. J. L. 166.
But the fact that counsel for the company erroneously assumed, and announced his thought, that the burden of proof
We agree with the Supreme Court that the proofs demonstrated conclusively that the decedent was engaged in interstate commerce at the time of his injury and death. He was the baggage agent at a station on the company’s railroad in thi« state. His duties consisted, among other things, in meeting trains of the company, both interstate and intrastate, stopping at his station, receiving from them such baggage and mail as there was to leave there, and delivering such baggage, railroad mail, and the like, as. was to be put aboard the train. In the performance of this duty he met a train of the company which had come from Binghamton, Now York, and was, consequently, an interstate1 train. He received some letters and papers from that train, and delivered some others. Apparently, there was no baggage or express matter discharged or taken aboard. The train started, and decedent ran alongside the train holding on by a hand-rail while speaking to a trainman in the performance of his duties. While so running he struck a snowbank and was thrown under the wheels and killed. These were the ascertained and undisputed facts. The case did not. call for the weighing of testimony, but only for the application of the law to the ascertained facts.
It seems to have been argued in. tbe Supreme Court that be was not engaged in an act of interstate commerce because it is not shown that any of the articles delivered or received came from out of the state or was going out of the state, or that the conversation was upon an interstate matter. But that is
The judgment of the Supreme Court will .be. affirmed.
For affirmance — The Chancellor, Chief Justice, Savayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, I-Ierpenheimer, Williams, Taylor, Gardner, Aokerson, JJ. 14.
For reversal — -None.