For the prosecutor, Avidan & Avidan (Sara M. Lewitt and Alexander Avidan).
For the defendant, Kalisch & Kalisch (Isidor Kalisch).
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
BODINE, J. This is a workmen's compensation case. The widow had judgment in the Bureau which was reversed in the Court of Common Pleas. The case comes before us for review on certiorari, and it becomes our duty to find the facts.
The deceased had been employed as a laborer for twelve years by the defendant. On December 4th, 1944, he had been working all day and was last seen by James Mullin, a fellow employee, on the first floor of the warehouse at approximately eight o'clock in the evening. His body was found in the pit of the rear elevator shaft on the following morning. He was still wearing his working clothes. His face was in several inches of water. The cause of death, certified by the coroner, was fractured skull and drowning. The elevator shaft was on the east side of the building. To the rear of this was the men's wash room to which many of the employees went before leaving the building. The practice was to leave only a very dim light after closing. Such was the case when the decedent was last seen. The elevator was of the usual warehouse type, without self-closing doors or safety devices of any kind. The
distance from the first floor to the pit, where the deceased was found, was between twelve and fifteen feet.
The learned and experienced Deputy Commissioner of Compensation found: "I have determined that when the decedent was in the area of the elevator shaft he was in the course of his employment.
"I have further determined that the presence of the body bearing injuries which would result from a fall down the elevator shaft raises a legitimate inference that petitioner's decedent died as a result of a fall down the elevator shaft.
"I have further determined that, there being no evidence as to how he met his death, the circumstances were such that it is proper that I presume that decedent's death was the result of an accident arising out of and in the course of his employment."
This determination was in accord with the finding in Mountain Ice Co. v. Durkin, 6 N.J. Mis. R. 1111, 1113. In that case, it was said by the Supreme Court: "The presence of the body, bearing injuries which would result from a fall immediately beneath the platform thirty-five feet above, from which an open door led to a room to which he had access, raises a legitimate inference that he died as the result of a fall from the platform. The deceased was a watchman; the very character of his employment would require him to enter any portion of the company's ...