For the prosecutor, Hobart, Minard & Cooper (John J. Gaffey, of counsel).
For the respondent, Koch & Simon (Nathan Rabinowitz, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. N.J.S.A. 34:15-1, et seq. Broadly stated, the basic question for decision is whether the deceased employee died as the result of an accident arising out of and in the course of his employment. More specifically stated, the question for decision is whether the terms and conditions of the pass given to and accepted by decedent at the time of his employment and used by the decedent when he suffered fatal injuries while on his return from work to his home in one of prosecutor's public passenger trains should have barred, as urged, his widow's claim petition for compensation.
The meager facts which give rise to the stated question are stipulated. From the stipulated facts we learn that at the time of the accident (January 6th, 1938) and for two years prior thereto decedent, whose sole dependent was his wife (respondent here) with whom he lived in Paterson, New Jersey, was engaged and worked for prosecutor railroad company as a baggage porter at its terminal in Jersey City, New Jersey. Decedent worked six days a week from 10:00 P.M. to 7:00 A.M., at the rate of fifty cents an hour and earned $24 a week. His rate of pay was the same as that of any employee living in Port Jervis, New York, or in Jersey City, New Jersey. His duties were confined entirely to Jersey
City and consisted of handling, sorting, routing and loading of mail, newspapers and baggage arriving at Jersey City from New York and destined to points within and without the State of New Jersey.
On January 6th, 1938, decedent completed his work at his usual time (7:00 A.M.) and promptly thereafter boarded one of prosecutor's public trains which traveled from Jersey City to Paterson, New Jersey. As the train was moving into the Paterson station, at 7:33 A.M., at a speed of approximately fifteen miles an hour, decedent was seen to jump off the train, run along the platform holding on to a grab handle, lose his footing, fall and roll under the train. He sustained fatal injuries.
At the time of the accident decedent had in his possession a railroad pass which had been given to him by prosecutor at the time of his employment. The pass reads as follows:
"Erie Railroad Company. New York, Susquehanna and Western Railroad Co. The New Jersey & New York Railroad Co. Eastern District.
Not good on trains 1 and 2 except between Hornell and Buffalo, N.Y. 1937-1938 Pass Mr. Joseph Micieli Account Extra Baggage porter (AIK) Between stns. Jersey City, N.J. and Paterson, N.J. Until December 31st, 1938. Valid when ...