On appeal from the Superior Court, Appellate Division, whose opinion is reported in 26 N.J. Super. 274.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher, Jacobs and Brennan. The opinion of the court was delivered by Oliphant, J.
This is a workmen's compensation case on appeal from a judgment of dismissal by the Appellate Division affirming a judgment of the Essex County Court dismissing petitioner's action.
By stipulation between the parties the initial hearing in the Bureau was confined to a determination of the compensability of the accidental injury under the statute. If it were deemed compensable a further hearing was to be held for the purpose of establishing the extent of the disability. This latter hearing was not held as the Bureau dismissed the claim. It will thus be seen that three lower tribunals have resolved the issue against the petitioner. It comes before us only by reason of a dissent in the Appellate Division, Rule 1:2-1(b), now R.R. 1:2-1(b); N.J. Const. 1947, Art. VI, Sec. V, par. 1(b).
The question presented is -- Did the admitted accidental injury suffered by the petitioner satisfy the statutory requirements of "arising out of and in the course of [her] employment"?
For a proper understanding of the case a rather detailed review of the facts is necessary. Petitioner, on July 10, 1951, suffered an accident and resulting injuries because of her falling through a glass skylight on a section of a roof of defendant's building during her lunch period. She was employed as a cleaning woman, her duties consisting of cleaning office rooms and a few others on the second floor of the building. Her work did not require her to go out on the roof except as hereafter stated. Her hours were from 4:30 P.M. until approximately 11:00 P.M. She had little or no supervision regarding her work. She worked alone after 5:00 P.M. At the beginning of her employment she was given her cleaning equipment and a closet inside the factory in which to store it, but following complaints concerning an odor from her mops she kept them on the roof outside the second floor beside a door which was always unlocked. It is not shown whether or not her employer knew of this. She never had any work to do on the roof but usually ate her
lunch there, near where she kept her mops. Evidently this was done without either the approval or disapproval of the defendant.
On the day of the accident petitioner went to the roof to partake of her lunch, and there having been a large fire at Port Newark a few days before she wanted to see if there was smoke still coming from it. To have a better view she walked along the roof some distance from where she kept her equipment, climbed a ladder to another roof at a higher elevation, then in attempting to reach another ladder which would have taken her to still another roof at a still higher elevation, she stepped on a small raised platform and in walking across it fell through a skylight. She testified there was nothing in her work which would call upon her to climb up there and she had never been there before. There is no evidence that it was her custom to take walks on the roof.
We are convinced that the statement of the facts heretofore made makes it self-evident that the accident arose neither "out of" nor "in the course of" her employment except in the latter instance as it occurred during her lunch period.
The test defining when an accident arises in the course of the employment was laid down in Bryant v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913), and has since been consistently followed. It was there stated
"* * * an accident arises 'in the course of the employment' if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time * * *.
A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only ...