91 N.J.L. 166 | N.J. | 1918
The opinion of the court was delivered by
Henry W. Lincks, who was an employe of the respondent, the Erie Railroad Company, was killed on December 24th, 1914, in the company’s Jersey City yard, while engaged in the duties of his employment. The appellant, who is his administratrix, filed a pétition in the Hudson County Court of Common Pleas to recover remuneration for his death under the New Jersey Workmen’s Compensation act. Chapter 93, laws of 1911. The company in its answer filed to the petition set up as its principal defence that it was an interstate carrier and that the plaintiff’s intestate at the time of his death was employed by the com
The decedent was employed by the railroad company in its yard at Jersey City. His principal duty was to take care of the cab lights upon the various engines which came into the yard and keep them in proper condition for use. Some of these engines were used in interstate and others in intrastate commerce. It may be inferred from the testimony that the decedent was run down and killed while crossing one of the yard tracks on his way from an engine, the lamps of which he had been putting in order, to another, the lamps of which needed care. There is absolutely nothing in the testimony, however, to show whether the engine upon which he had just completed his work or the engine to which he was going was engaged in interstate or intrastate commerce. It is true that the yard was devoted to both kinds of commerce, but that fact is immaterial. In the case of Illinois Central Railroad v. Behrens, Administrator, 233 U. S. 473, the plaintiff’s intestate was a member of a. crew attached to a switch engine operated exclusively on that part of the railroad company’s line which was located within the city of New Orleans. The crew of this engine handled interstate and' intrastate traffic
The judgment of the Supreme Court reversing that of the Common Pleas, and remitting the record to that court to be proceeded with according to law, was therefore proper. Upon receiving the record, however, the Court of Common Pleas should proceed to retry the case along the lines indicated in this opinion rather than under the rule declared by the Supreme Court.
The judgment will be affirmed.
For affirmance — The Chancellor, Chief Justice, Swayze, Parker, Bergen, Minturn, Kalisch, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 12.
For reversal — None.