For the prosecutor, Charles E. Miller.
For the respondent, Harvey Rothberg.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Respondent's decedent, Joseph Y. Martin, suffered death, on November 2d, 1932, by an accident which arose out of and in the course of his employment with the prosecutor. The workmen's compensation bureau awarded compensation to his dependents under the State Compensation act. Pamph. L. 1911, p. 134. The Hudson Common Pleas affirmed the judgment; and the employer sued out a writ of certiorari.
The question at issue is whether the deceased, at the time he sustained the fatal injuries, was employed in interstate
commerce within the intendment of the Federal Employers' Liability act. 45 U.S.C.A., § 51-59.
The facts are stipulated. Prosecutor is the operator of a railroad in this state. It engages in both interstate and intrastate commerce. In the transaction of such business, it maintains a train shed at its terminal in the city of Jersey City. It employed the deceased as a painter. While engaged in repairing the skylight on the roof of the terminal train shed, he fell through an opening to the railroad tracks below, and thereby sustained the fatal injuries.
Tested by the apposite rule, the service at which the deceased was engaged when the accident befell him falls into the category of interstate commerce. The criterion of employment in such commerce is, was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Rossi v. Pennsylvania Railroad Co., 115 N.J.L. 1. It is essential that the carrier be engaged in interstate commerce at the time the injury is sustained, and that the injured employe be then employed by the carrier in such commerce. The nature of the particular employment on other occasions is of no moment. The act has reference to the service being rendered when the injury was sustained, and it necessarily follows that one may be employed in what is technically interstate commerce, and yet not be a member of the class entitled to the benefits of the federal statute. Mr. Justice McKenna, speaking for the federal Supreme Court, said: "The Federal act gives redress only for injuries received in interstate commerce. But how determine the commerce? Commerce is movement, and the work and general repair shops of a railroad, and those employed in them, are accessories to that movement -- indeed, are necessary to it; but so are all attached to the railroad company -- official, clerical or mechanical. Against such a broad generalization of relation, we, however, may instantly pronounce, and successively against lesser ones, until we come to the relation of the employment to the actual operation of the instrumentalities for a distinction between commerce and no commerce. In other words, we are brought
to a consideration of degrees, and the test declared, that the employe, at the time of the injury, must be engaged in interstate transportation or in work so closely related to it as to be practically a part of it, in order to displace state jurisdiction and make applicable the Federal act. And there is a difference in the instrumentalities. In some, the tracks, bridges, and roadbed and equipment in actual use, may be said to have definite character, and give ...