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Kelly v. Hackensack Water Co.

Decided: December 13, 1950.

FANNY B. KELLY, WIDOW AND GENERAL ADMINISTRATRIX OF THE ESTATE OF LEROY KELLY, DECEASED, PETITIONER-APPELLANT,
v.
HACKENSACK WATER CO., RESPONDENT-RESPONDENT



Freund, Proctor and Rogers. The opinion of the court was delivered by Rogers, J.A.D.

Rogers

This is a workmen's compensation case wherein appellant's claim is based upon the accidental death of her husband, Leroy Kelly, arising out of and in the course of his employment by respondent, Hackensack Water Co.

At the close of petitioner's case before the Division of Workmen's Compensation, respondent's motion for judgment of dismissal, upon the evidence presented, was granted. The appeal is from that judgment. It is made to this court pursuant to Rules 3:81-7, 8 because our compensation statute, R.S. 34:15, contains no procedure for appeal where, as in this case, the alleged compensable accident occurred outside this State. Cf. Mulhearn v. Federal Shipbuilding and Dry Dock Co. , 2 N.J. 356 (1949).

It is fundamental that, upon respondent's motion for dismissal proposed at the conclusion of petitioner's case, all reasonable inferences deducible from the evidence submitted must be resolved in petitioner's favor and that therefrom it be determined whether a prima facie case was presented. The hearing officer concluded that the evidence did not establish a compensable claim under our statute because it did not appear that the employee's death resulted from an accident arising out of and in the course of his employment. Upon

consideration of the evidence, we are convinced that petitioner established a prima facie case and that the judgment of dismissal was error.

Two questions are raised by this appeal. The first is, whether the evidence makes out a prima facie case of compensable accident arising out of and in the course of decedent's employment. The second is, whether the hearing officer erred in refusing to fully recognize the demands made in the subpoena duces tecum issued by petitioner.

The first point comprises two phases and was so presented in the briefs and at argument. The primary one is whether the evidence showed the alleged accident which caused the employee's death was such within the intendment of the statute, or did the evidence demonstrate that his death resulted from skylarking, intoxication, or willful negligence. If the accident was within the statute, there remains the question of whether it arose out of and in the course of decedent's employment.

The statutory "accident" means such a happening in the usual and broad sense. Our courts have construed it to be 'an unlooked for mishap or untoward event which is not expected or designed." Bryant, Admx. v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913); Geltman v. Reliable Linen & Supply Co. , 128 N.J.L. 443 (E. & A. 1942).

The substantial facts surrounding the accident are:

Kelly's death occurred while he was attending his employer's outing at Bear Mountain Park, New York, in September, 1949, and it resulted from his fall into a ravine from a steeply declining hard surfaced pathway upon which, at the end of the afternoon, he was returning to the boat provided by the employer for the trip to and from the outing. The path was curved and steep enough to require one to hold back from gaining too much momentum in travelling down it to the river level from the upper park area where the picnic events were held. A rustic fence about 3 1/2 feet high extended along the pathway separating it from the ravine and to a point where the pathway at a sharp angle met the ramp bridge

leading over railroad tracks down to the boat. Kelly fell from the pathway a few feet from its junction with the ramp bridge. There is no evidence as to how he fell, except for the statement of one witness who was also going down the path about 25 feet behind decedent. She says that she suddenly saw an object go over the fence, that she screamed and a number of people then ran to the scene. She found later that the object she ...


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