Soden v. Public Service Transportation Co.

| N.J. | Sep 30, 1926

Per Curiam.

The plaintiff’s intestate, Raymond Soden, was one of four drivers of public service buses who were required to report to the night station master, named Guyer, shortly before six in the morning for duty, and were then put into a touring car driven by another employe, named Moller, to be taken to the garage, where they were themselves to take charge of their several buses and start out at their scheduled times. On the morning in question the men were assembled and the touring car started for the garage. It never arrived there to discharge its passengers. Some one in the party seems to have suggested that there was time enough to go on beyond the garage, cross the railroad tracks, and go a mile or so further to look at the scene of an accident that had occurred the day before, so the car, under charge' of Moller, went on to the place' of the 'accident, turned around and was crossing the railroad tracks on its return when it was struck by a train and all the occupants, with the exception of a man named Clark, and including Soden, were killed.

Several defenses were made, including one that SodeWs employment had not .begun because his time had not begun to run, but the commissioner properly brushed this aside. The real' point of the ease was whether, under the circumstances, the accident was one arising out of and in the course of the employment. If. the widow of Moller were suing in this ' case, it might be proper to hold that the divergence from his course for a purely. private errand would bar the claim. That, of course,.is not before us. When we come to the passive occupants of the ear, the question arises whether they are also barred because without their participation and, perhaps, against their protest, a fellow-servant undertook to take them somewhere not contemplated in the employment. The commissioner was justified, on the testimony of Clark, in finding that Soden, at least, had nothing to do with the deviation, though he was riding on the front seat with Moller. Clark said, in effect, that “someone in front” suggested going there; that he, Clark, said it would be no use because the thing had all been cleared up, but that Moller went on, and no one else said anything. We do not think that this misconduct of a fellow-servant should bar the petitioner as a deviation.

. As the commissioner was entitled to find,' Moller wished to go see the accident; he was entrusted with the driving of the car, and it was not for the others except in an extreme case to interfere with him for fear of themselves bringing on an accident.

Our conclusion is that the judgment of.the Pleas should be reversed and the award of the commissioner affirmed.