On appeal from the New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
This matter is before the court on appeal from a determination of facts and rule for judgment of the Workmen's Compensation Division in the Department of Labor and Industry by which an award was made in favor of the petitioner.
The respondent urged as grounds for the appeal that the deputy commissioner below erred in finding that the injury which admittedly caused the death of the petitioner's decedent, was sustained in an accident arising out of and in the course of the latter's employment and erred further in his rejection of the statutory defense of intoxication.
The testimony discloses that William J. Schultz was employed by the Henry V. Vaughans Sons & Co., Inc. on December 6, 1950 as a fireman on a water-borne pile driver which was moored alongside a sunken barge in the Delaware River shore line, within the yard of the RTC Shipbuilding Company. It may be gathered from the record that the shipbuilding company made improvised use of the barge as a pier and that the respondent had been engaged to drive piling into the river bed and around the perimeter of the barge, leaving a clearance of 18 to 24 inches between the side of the barge and the line of piling. The object to be served was to arrest the movement of the barge toward the adjoining railway dock. The shipyard property sets in a basin of obviously natural contour several hundred yards in depth and tapering in width from mouth to shore from about 100 yards to 50 yards. The barge lay midway of the basin's mouth with its stern just barely into the river stream and its bow pointing perpendicularly to the shore. A pier about
12 feet wide extending in a direct line from the shore and built right into the bow of the barge a distance of about two-thirds of the total basin completes the perpendicular and provides the link between the barge and the land.
While it is not entirely clear from the record it would appear that the pile driver on which the decedent was employed came into the basin opening and pulled to alongside the barge in a position convenient to drive the pilings around it. It may also be inferred that as the progress of the work required, the pile driving equipment was moved along the side of the barge. In the actual driving of the pile it was necessary for some of the workmen to take positions between the barge and the pile driver, and in order that they might do so a floating stage about five feet wide was put overboard between the barge and the pile driver and they worked from it. Thus passage between them could only be made across a 16-foot length of plank which was placed one end on the deck of the barge and the other on the deck of the pile driver. The boiler which the decedent fired to provide the power was located on the stern of the pile driver. Hence, in order to reach the pile driver from the shore side it was necessary that he enter the grounds of the shipyard, walk to the water's edge at the beginning of the pier, out the whole length of the pier onto the bow of the barge, over the barge to the plank bridging the gap between the barge and the pile driver and thus to his work place.
On December 13 the petitioner's decedent, having been paid, went ashore in the late afternoon and, so far as the testimony reveals, was next seen in a tavern located across the street from where he was living in the city of Gloucester. This was at about 11:30 P.M. The owner of the taproom who had known him since he first came to Gloucester, a period of about two and a half years, testified that he drank not over a half dozen glasses of beer, had one drink of whiskey and ate a sandwich and a bowl of soup. At about five minutes after one in the morning of the 14th the taproom proprietor called a cab for the decedent and heard the latter tell the
cab driver that he was going to North Camden to work, and testified further that when he himself asked why it was that Schultz wanted to leave so early, he was told by the decedent that the latter could go up there and sleep on the job.
Evidence was also adduced through the cab company dispatcher and a driver who took a call in the early morning hours of December 14 directing him to the taproom in question, from which it may reasonably be inferred that the decedent was discharged from the cab in front of the RTC Shipyard at about 1:45 A.M., and while the cab driver testified that his fare staggered off in the opposite direction from the shipyard, the watchman on duty at the place testified that he admitted a man at about 2 o'clock who said he was working on the tugboat alongside the dry dock, and while no positive identification was made, the meshing of all the circumstances of time, place and description is such that a contrary finding is virtually prohibited. It is therefore held as a matter of fact that the petitioner's decedent was the man who entered the shipyard property at that time.
The thread of the direct evidence is broken from that point and is resumed with the testimony of Walter Wilson, the foreman in charge of the job, who said that he came aboard about 7:20 to discover that there was no fire in the boiler. The duty of starting the fire was the decedent's who was expected to be on the job in advance of the full gang and have the steam up in order that they could start driving at 8 o'clock. The foreman having done this job, sat and talked awhile with the engineer and the rest of the men, then went out to look over the work. As he did he looked at the floating stage, under the gangplank and saw a hat which he recognized as belonging to the missing fireman. After talking further with the men he looked down between the barge and the sheathing and saw the decedent in an upright position "standing" in water up to his shoulders with his head bent over and hanging into the water. As one witness put it, he was "boxed in." According to the foreman, the point at which he observed the body was about five feet [24 NJSuper Page 497] from the gangplank between the barge and the pile driver on the shore side. A call was then made to the police and the men went about the task of raising the decedent. This was done by catching his coat with a boathook and putting him up out of the water and on to the barge. The coat was described as being a mixed grey light overcoat underneath which he had on his working clothes. The decedent was placed upon a hand-car and a fire rescue squad started to give artificial respiration which was continued until they were ordered by an interne summoned to the scene to cease. Upon examination the doctor could detect no heart beat but thought that he felt a definite but rather feeble pulse. With this the doctor ordered resumption of the artificial respiration, the removal of the decedent to the hospital and his being placed in an iron lung. About an hour later and while the decedent was still in the iron lung, a surgical resident pronounced him dead. The county physician was then summoned and at about 10 A.M. performed a postmortem on the body, as a result of which it was determined that death resulted from a contusion of the pons, a portion of the base of the brain directly in front of the cerebellum, providing the passageway for the nerves entering the spinal column. It was the doctor's opinion that the decedent was struck on the top of the head with such force as to propel the brain into violent contact with the floor of the cranial vault. This was the only evidence of ...