For the prosecutor in certiorari, Kellogg & Chance (R. Robinson Chance).
For the respondent in certiorari, Frank G. Turner.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up for review a judgment for workmen's compensation rendered by the Essex County Court of Common Pleas. At the time of the accident for which recovery was had below Fergus F. Flanagan, the employe, was sixty-nine years of age and had been in the employ of the prosecutor as machine operator since 1913. The lunch period was from twelve to twelve-thirty. Flanagan regularly ate his lunch by the machine where his work was. No special place was provided in the factory as an eating place for the employes, but it was customary, though not compulsory, for the latter to eat in the shop. On the day in question Flanagan, having finished his lunch, went to a sink in the back of the room to wash his milk bottle and on the way back to his machine stumbled over a stool and fell. As a result of the fall his left leg was broken; specifically, the trochanters at the juncture of the neck and shaft of the femur were fractured. Prosecutor, upon learning of the accident, sent Flanagan to the attending physician, and the latter
placed him in St. James Hospital. While Flanagan was at the hospital undergoing treatment for the fractured femur, his arm was injured as an incident to the changing of the bedsheets by the hospital nurses.
The determination below found that there were permanent injuries to both the leg and the arm. Compensation was allowed for those permanent injuries at $15 a week for a period of two hundred weeks.
Prosecutor's first point is that the original injury was not from an accident arising out of and in the course of the employment. The essential facts of that accident came into proof by the admission in evidence of a signed statement which prosecutor's insurer had procured from the employe. The statement was offered and admitted in evidence upon this remark made in the presence of counsel for the employer and without remonstrance from him: "* * * both parties are submitting the statement to your honor to pass upon the factual question." We construe this quoted sentence as equivalent to a stipulation by the parties that the facts of the accident were as set forth in the statement. The contention of the prosecutor upon the proposition stated above as the first point is that the facts do not show an accident "arising out of the employment." This boils down to the question whether workmen who, with the tacit consent of the employer, have established the custom of eating their noon lunch in the ambit of the machine upon which they are employed are out of their employment to the extent that they have no protection under the Workmen's Compensation act while so engaged. There is no suggestion of horseplay or skylarking. Upon the simple legal proposition thus stated the trend of the decisions in this state and the holdings in a number of other jurisdictions are that the workman is still in his employment in the sense that he is within the coverage of the compensation acts. For a review of the leading cases up to the time of the decision see Hanna v. Erie Railroad Co., 8 N.J. Mis. R. 829. In the cited case the workman was employed by the Erie Railroad Company in the setting of valves and piston backing in engines. It was customary for the employes to eat their lunch
in the period between three o'clock and three-twenty o'clock and for some of the men to eat in the machine shop. Hanna undertook to eat his lunch in the machine shop and sat upon a machine which thereupon began operating to his serious injury and almost immediate death. It was found that the accident arose out of and in the course of the employment. That is a direct holding, as it seems to us, upon the question here involved. In McInerney v. Buffalo and S.R. Corp. (N.Y.), 121 N.E. Rep. 806, the decision went contra to the claim of the workman on the facts of the case, but this language is used: "It is true that it has been held many times that where an employer requests or customarily permits his employes to eat their meals upon his premises or in some place provided for them, the temporary interruption to their work thus caused will not be regarded as terminating their character as employes or as excluding them from the protection of such a law as our Compensation act." We find against prosecutor on the first point.
It is next contended that the award should not include the added disability arising out of the arm injury. The proofs sustain the factual finding of the court below that after the accident prosecutor took charge of the workman and sent him to the physician who caused him to be placed in the hospital wherein the injury occurred, the doctors on behalf of the prosecutor took charge of the treatment and that the cause of the injury was the act by the hospital nurses of changing the sheets as an incident to the treatment of the fractured femur about two weeks after the original accident. In our view the second injury was directly attributable to the first. It came in the immediate sequence of events. There was no contributing factor outside of the acts which flowed from and were made necessary by the leg injury. The changing of sheets is so essential a part of adequate hospitalization as to be routine in every ...