199 A. 578 | N.J. | 1938
The question to be decided in this case is whether Fannie Grady, the petitioner-employe, is entitled to compensation under the Workmen's Compensation act. That she was an employe of the appellant is conceded, the disputed issue being whether the admitted accident and resulting injury arose out of and in the course of her employment.
Mrs. Grady was about to enter the employer's premises, about a half-hour before the appointed time for commencing work. She alighted from a bus at half past seven o'clock in the morning, February 21st, 1936, crossed the roadway in front of the employer's plant, walked up a very slight incline driveway which was paved and normally used for such vehicular traffic as might have occasion to enter or leave the premises, slipped on some snow or ice patches (and perhaps on a piece of paper or thin cardboard similar to the kind used in the plant as a covering for razor blades), fell and sustained a fracture of the ankle.
It is, we think, important to note that immediately adjacent to the driveway upon which the petitioner fell was an entrance which was intended for use by the employes in entering the employer's plant. In front of this entrance normal sidewalk conditions obtained. It is not contended that the driveway upon which the petitioner sustained her accident was a necessary means of ingress and egress to the premises in question.
The deputy commissioner concluded on these facts that the petitioner had suffered an injury by accident arising out of and in the course of her employment and allowed compensation. On appeal to the Essex Pleas, this determination was affirmed on the authority of Bolos v. Trenton Fire Clay and Porcelain Co.,
To warrant a recovery under our Compensation law, it must appear that the accident and injury suffered arose out of and
in the course of the employment. Both components or elements must be present. This is a statutory requirement. The words "`out of' point * * * to the origin and cause of the accident; the words `in the course of' to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident; the latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words `out of' involves * * * the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment." Bryant, c., v. Fissell,
The fact that the accident in question occurred at least a half hour before the time appointed for commencing work at the plant is, we think, quite conclusive that the employment had not yet begun within the contemplation of the statute. Now if the employment had not yet begun, it is manifest that the accident in question did not arise in the course of the employment. In reaching this conclusion, we are not unmindful of the holding of the federal Supreme Court in the case of Cudahy Packing Companyof Nebraska v. Parramore,
Awards have also been sustained that embraced accidental injuries even before work was started when the employe was in the building of the employer and fell into an elevator shaft or on the stairway, on the theory that he had reached the place of employment and had used a means of entrance appurtenant to the premises of the employer. Starr Piano Co. v. Ind. Acc. Com. etal., 184 Pac. Rep. (Cal.) 860; see, also, Ocean Acc. andGuar. Co. v. Ind. Acc. Com. of California,
The English rule seems to be consistent with the rule of the cases just cited that it is requisite that the person claiming compensation must, if not actually working at the time of the accident, be in effect on the premises where his employment is or be using an instrumentality appurtenant thereto, e.g., the gangway and ladder cases where the employment is on a steamship.Robertson v. Allan Bros. Co., 1 B.W.C.C. 172; Moore v.Manchester Liners, Ltd., 3 Id. 527; Keyser v. Burdick Co., 4 Id. 87; Kearon v. Kearon, 4 Id. 435; Leach v.Oakley, Street Co., 4 Id. 91; Kitchenham v. S.S.Johannesburg, 4 Id. 91; Jackson v. General Steam FishingCo., Ltd., 2 Id. 56. But the rule is otherwise and compensation is not allowed when the accident occurs at a place other than the actual place of employment. See Gilmour v.Dorman, Long Co., Ltd., 4 B.W.C.C. 279; Walters v.Staveley Coal and Iron Co., Ltd., 4 Id. 303; Biggert v.S.S. Minnesota, 5 Id. 69; Caton v. Summerlee, c., 39Scott T.R. 762.
Although our statute is similar to that of England, we do not adhere to the rigorous statutory construction held by the English courts. Our construction has liberalized their rule considerably,e.g., the Terlecki and Bolos cases. From a consideration of these cases it is evident that we do not hold *356
that an accidental injury to be compensable must occur within a period of time co-extensive with the contract for the given and customary hours of labor. The protection of the statute goes further than that and includes terms reasonably incidental to the term of employment and which attach to it with the express or implied consent of the employer. This principle, we think, may reasonably be extracted from the cases in our own state, cited above. See, also, Mann v. Glastenbury Knitting Co.,
Adverting to the facts before us and applying the legal principles of our cases, especially the principle stated by this court in the Gullo case (
The judgment will be reversed. *357 For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, DONGES, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 11.