On appeal from the Essex County Court wherein Judge NAUGHRIGHT filed the following opinion.
Eastwood, Bigelow and Jayne. Bigelow, J.A.D. (dissenting).
"The Division of Workmen's Compensation, Department of Labor and Industry, denied petitioner's claim for compensation for injuries she suffered from an accident that occurred on July 10, 1951, on the ground that the accidental injuries suffered by petitioner did not arise out of and in the course of her employment. From this decision the petitioner appeals.
"There is little dispute as to the facts, they are as follows:
"Petitioner has been employed by the respondent for the past several years as a cleaning woman. Her job was to clean the second-floor offices of the respondent company. She came to work at 4:30 P.M. and would stay until 11 P.M., taking time off during this period to eat her lunch. The office force would usually leave at 5 P.M. and petitioner was pretty much on her own. She received little, if any, supervision in her work; she ate lunch when and where she wished and could take as much time for it as she desired.
"When petitioner began working for respondent she was furnished cleaning equipment and a closet to store it in. This closet was located in the area of the offices. Petitioner continued to use the closet for storing the equipment for about a year, when some of the office staff complained of a damp smell and petitioner, believing the cleaning mops may be causing it, commenced storing her cleaning equipment on the roof of respondent's premises which could be reached via a door in the office area.
"Respondent is engaged in the manufacturing business and it would be well at this point to describe the premises in question. The offices that petitioner cleans are on the second floor of its plant. The section of the plant immediately adjoining the offices is one story in height. A door leads
from the offices to the roof of the one-story section. The one-story section is divided into different heights, so that going through the previously mentioned door one may reach three different sections of different heights of roof covering the same building. There are ladders to assist in ascending or descending to the different heights of the roof.
"On the day in question petitioner had commenced her cleaning duties as usual, and at about 7 P.M. went out on the roof to eat her lunch. It was her custom to do so during the summer months. This was done without either the approval or disapproval of respondent and, so far as we have been able to determine from the testimony, without his knowledge.
"A few days before the day in question there was a propane fire at Port Newark. Petitioner desiring to see if there was still smoke coming from this fire which was some distance away, left the first section of the roof and climbed the ladder to the next height or second section of the roof. While on the second section petitioner desired to go to the next elevation or third section of the roof. While walking toward the ladder to reach this third elevation she walked on a glass section of the roof. She fell through this glass section a distance of some 30 feet to the floor below.
"Petitioner candidly admits that her only motive in wanting to see if the fire was still smoking was to satisfy her curiosity.
"It is admitted that petitioner is an employee of the respondent and that she met with an injury caused by an accident. To warrant a recovery it must appear that the accident (a) arose out of, and (b) in the course of her employment. The pertinent part of our workmen's compensation act was first construed in Bryant v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913), wherein the court said,
"'Even if there be an accident which occurred "in the course of" the employment, if it did not arise "out of the employment," there can be no recovery; and even though there be an accident which arose "out of the employment," if it did not arise "in the course of the employment," there can be no recovery. * * *
'For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental to the employment. As was said by Mr. Lord Justice Buckley in Fitzgerald v. Clarke & Son (1908), 2 K.B. 796. "The words 'out of' point, I think, to the origin and cause of the accident; the words 'in the course of' to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words 'out of' ...