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Fury v. New York and Long Branch Railroad Co.

Decided: December 9, 1940.

THOMAS M. FURY, PROSECUTOR,
v.
NEW YORK AND LONG BRANCH RAILROAD COMPANY, DEFENDANT



On certiorari to the Monmouth County Court of Common Pleas.

For the prosecutor, Quinn & Doremus (Vincent J. McCue, of counsel).

For the defendant, Applegate, Stevens, Foster & Reussille (John S. Applegate and Ida K. Hildebrand, of counsel).

Before Justices Case, Donges and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Certiorari was granted to review a judgment of the Monmouth Court of Common Pleas reversing an award by the Compensation Bureau in favor of an injured employe of the defendant railroad company, under R.S. 1937, 34:15-1, et seq.

The decisive question is whether an accident concededly suffered by the employe arose out of and in the course of his employment; and we resolve it in the affirmative.

The defendant employer (to be hereafter referred to as the "Long Branch Company") is the owner of a railroad extending from a junction with a railroad of The Central Railroad Company of New Jersey (to be referred to as the "Central Company") at the north end of the bridge across Raritan Bay, in the county of Middlesex, to a junction with a railroad of The Pennsylvania Railroad Company (to be referred to as the "Pennsylvania Company") at Bayhead, in the County of Ocean. Railroads of the Long Branch Company and the Central Company intersect at Matawan, with switches and tracks permitting the transference of rolling stock from one to the other. On January 31st, 1930, these companies entering into a tripartite agreement, whereby the Long Branch Company granted to the Central Company and the Pennsylvania Company use of its railroad line, for a term of 999 years, upon certain terms and conditions. It was therein also agreed that the Central Company, subject to the approval of the Pennsylvania Company, "shall designate one of its Operating Officials who shall be appointed Superintendent of the Long Branch Company, and, in connection with his other duties, shall have charge of the operation and maintenance of its property, line, facilities and appurtenances;" that "The line, facilities and appurtenances of the Long Branch Company shall be kept in good repair, working order and condition, so as to permit the Operating Companies to fully enjoy the use thereof" therein provided for; and that "No switching service shall be performed on the line of the Long Branch Company by either of the Operating Companies, except upon authority of its Superintendent," and, "Unless so authorized, all switching on the line of the Long Branch Company shall be performed by it, and to enable it so to do, the Operating Companies shall furnish the necessary equipment" at rates to be fixed by mutual agreement.

It was further stipulated that nothing therein contained should affect the pre-existing "arrangements * * * between the Long Branch Company and the Central Company or the

Pennsylvania Company with respect to the operation and maintenance of facilities now used jointly and the division of the expenses thereof." Such facilities were listed in a schedule annexed to the agreement: and it was therein provided that the signal tower at Matawan (near which the mishap occurred) "shall be joint between the Central Company and the Long Branch Company," the former to bear twenty-seven per cent. and the latter seventy-three per cent. "of the expense of operating and maintaining the same;" and that "The train control sub-station" nearby "shall be joint between the Central Company and the Long Branch Company, and the Long Branch Company shall furnish the Central Company electric current required by it thereat," the Central Company to bear nineteen per cent. and the Long Branch Company eighty-one per cent. "of the expense of operating and maintaining said sub-station," and the Central Company also to "pay for all electric current furnished it, and in addition the sum of $9.50 per month representing its share of the interest on the cost of such sub-station."

Thus it is that there is a very close and intimate relationship between the Long Branch Company ...


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