Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.
Appellant was denied compensation by the Division of Workmen's Compensation on the ground that her accident did not arise out of or during the course of her employment. The County Court affirmed and the quest is pursued before us.
The employer, Union News Company, maintains a stand or place of business in the Hudson & Manhattan Railroad Terminal at Journal Square, Jersey City, where newspapers and incidentals are sold. The terminal or station is below street level and the railroad company has provided certain stairways, ramps, elevators and escalators as a means of ingress and egress for its intending passengers and incidentally for the customers of the Union News Company and any other tenants or concessionaires.
Miss Cerria had been employed at the newsstand located on the station floor for approximately five years prior to October 21, 1950. In getting to her work it was customary for her to descend from the public street to the station floor by the stairway on the railroad premises nearest to her employer's place of business. In the early afternoon of the date referred to, while descending this stairway on her way to work, she fell and suffered injuries. The accident occurred about 15 minutes before she was required to begin her duties. However, it was necessary for her to change into a uniform on arrival. Whether this had to be completed before she actually began work was not shown.
The adverse decision of the two previous tribunals was predicated upon the principle that an employee who falls on a public way while on her way to work does not sustain an accident arising out of and during the course of her work.
It is true that ordinarily such a mishap is not compensable. Moosebrugger v. Prospect Presbyterian Church , 12 N.J. 212 (1953); Fenton v. Margate Bridge Co. , 24 N.J. Super. 450 (App. Div. 1953), certiorari denied 12 N.J. 350 (1953); Grady v. Nevins Church Press Co. , 120 N.J.L. 351 (E. & A. 1938); Gullo v. American Lead Pencil Co. , 119 N.J.L. 484 (E. & A. 1938).
However, appellant was not on a public way at the time. The station and the stairways from the public street are the private property of the railway. They are provided for the use of intending passengers and, by necessary implication, as a means of ingress and egress to the Union News Company's place of business by patrons and employees. Any one using them for a purpose not connected with a business properly carried on there would be a trespasser or at best a licensee.
It is argued that the stairway constituted a public passageway because of a single answer given by Miss Cerria on cross-examination:
"Q. So that it is a general public passage used by everybody; is that correct?
It may very well be that members of the general public use the stairways and passageways as a convenient means of going from one public street to another on the opposite side of the station. But such use, which may have been observed by Miss Cerria and therefore would constitute the basis for her answer to the question, surely does not have the effect of establishing the existence of a public way. In fact, respondent's counsel, who informed us that his firm represented the Hudson & Manhattan Railroad, conceded that if such a user fell on the stairway and brought an action for damages, a plea of trespasser or licensee would be interposed.
We are thus brought to a consideration of whether an employee who falls on a stairway provided by her employer's lessor as the means by which ...