For the prosecutor, Frank G. Turner.
For the defendant, Whiting & Moore (Ira C. Moore, Jr., of counsel).
Before Justices Trenchard, Lloyd and Case.
The opinion of the court was delivered by
TRENCHARD, J. The Alberta Contracting Corporation, the prosecutor of this writ, seeks to set aside the judgment of the Essex County Court of Common Pleas affirming an award by the workmen's compensation bureau to the petitioner on account of an injury to a workman resulting in death.
The material facts are not in dispute. Substantially they are as follows: Giuseppe Vespa, the decedent, was employed by the Alberta Contracting Corporation, as a laborer at its stone quarry at a place known as Beech Glen "in the woods," thirteen miles from Boonton. Decedent's work was to dig rock from the stone quarry and prepare it for the crusher. The employer used a number of trucks in hauling stone and rock; some of these trucks were owned by the employer, and some were not, but all were used in hauling stone in connection with the employer's work. There was no railroad or bus line running to Beech Glen from Boonton where the laborers, including the decedent, lived. The trucks, however, passed from Boonton to Beech Glen every morning and came back at night, and it was the custom of the laborers, including the decedent, to go to work on one of these trucks and return on one at night. The testimony does not disclose an express agreement between the decedent and the employer that he should adopt this mode of transportation to and from the work. It does show, however, that this was the only way of going to and from the work; that the men were ordered from time to time by the "boss" to take the last truck home, and that for sixteen months they continued to go to and from work in this way with the knowledge and acquiescence of the employer.
The witness, Nicholas Grieco, a fellow laborer with the decedent, testified in part as follows:
" Q. How did you and Vespa come home from work? A. The last truck that was leaving there at night was ordered by the boss to take us home. The court: How do you know the boss ordered that truck to take you home? A. As soon as the truck would get there the boss would stop him and tell him to take us home."
The witness further testified as follows:
" Q. You worked under a boss by the name of Joe, you say? A. Yes, sir. Q. Would he usually get to the place of work around seven o'clock in the morning, too? A. He lived right around there. Q. Would he be there when you got off the truck? A. Every morning except that morning in question. Q. Did he use to see you and Vespa and the other men get off the trucks in the morning? A. Yes, sir."
On August 13th, 1924, Giuseppe Vespa, the decedent, as was his custom, stopped the first truck going toward Beech Glen and got on it to go to work; he was accompanied by the witness, Nicholas Grieco. After they had gone a short distance the truck was stopped by one Mike Sigereto, the brother of the president of the Alberta Contracting Company, who was also employed by that company as foreman. Mike Sigereto was deaf and dumb. He signaled to Vespa to get up and let him have his seat, which Vespa did, Vespa taking a position on the running ...