For the respondent, Archie Elkins.
For the prosecutor, William F. Hanlon (Charles E. Miller, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question involved in this workmen's compensation case is: Did the accident, as a result of which the employe died, arise out of and in the course of his employment with the prosecutor? The bureau held that it did not. The Court of Common Pleas of Hudson county held that it did; in that it concluded that the widow was entitled to the benefits of the act and accordingly reversed the dismissal of the petition. In order to determine the propriety of the respective disposition by each tribunal, as aforesaid, it becomes necessary in this case to determine whether the deceased had the right to be at the place of the accident. The petitioner alleged, under question 16, where did the accident happen? "Lehigh Valley Railroad trestle, Johnson avenue, Jersey City." Prosecutor, respondent below, in answer to the same question, replied that the accident happened "on a railroad trestle in Jersey City, not the property of respondent." That respondent's answer is correct is not, as we understand it, in controversy.
The bureau in its determination of facts and rule for judgment, held as follows:
"That at the time of the accident petitioner's decedent had ceased to work and was on his way home. Two passages were available to him, one was an alleged short cut over the tracks of the Lehigh Valley Railroad Company which was reached after leaving the respondent's premises and walking along a dedicated public thoroughfare, i.e., Communipaw avenue, Jersey City. The other way available to the decedent was to continue on the public street or streets of Jersey City until he had reached his home. It seems to me that to permit a recovery in a case of this kind where a decedent
chooses a dangerous route, and, in fact, trespasses upon a railroad owned by another than the respondent, although there was a perfectly safe way by which to reach his home, would be out of line with all the decisions on this question. The well recognized rule is that when an employe is injured while traveling to or from his place of work, has departed from or has not yet reached the employer's premises, and the means of conveyance is not furnished by the employer, the injury does not arise with the employment. Bradbury's Workmen's Compensation (3d ed.) 468, and the many cases cited.
"In Hill v. Blair, 138 N.W. Rep. 243, where an employe chose to travel along a railroad whereas he could have gone by a more safe route, it was held not compensable.
"In the Bell case, 130 N.W. Rep. 67, two ways of egress were open, one along the right-of-way which employe chose of his own volition and this case was held not to be compensable.
"In the case of Fox v. Rees & Kirby, Ltd., 15 W.C.C.A. 243, the court denied compensation, holding in part that by walking along the railroad track while there were two less hazardous ...