On appeal from New Jersey Department of Labor and Industry, Workmen's Compensation Bureau.
The petitioner, an employee, claimed that he was injured while walking on the sidewalk in front of the respondent's factory, and he was given an award which is not appealed so far as the amount is concerned, but is appealed on the ground that the accident was not a compensable one because it happened on a public sidewalk even though the sidewalk was in front of the respondent's factory premises. A photograph was admitted showing the entrance and the sidewalk and it was stipulated below that the public sidewalk where the man fell was, according to paragraph 5 of the stipulation:
"The only possible pathway to go from the employees' parking lot to the entrance to the respondent's factory hereinbefore referred to is by means of the sidewalk on South Avenue depicted on Exhibit PR-1."
It was further stipulated that immediately adjacent to respondent's factory is a parking lot intended for the convenience of the respondent's customers, and immediately adjacent to such customers' parking lot respondent also maintained an employees' parking lot for those who do not use public conveyances, which lot such employees might use daily if they wished. The factory and the two parking lots are adjoining and together they formed part of the factory premises owned and operated by respondent.
It is further stipulated that on the morning of March 21, 1956, at about 6:45 A.M., preparatory to reporting for work, the car in which the petitioner came to work was parked by his co-employee with whom he rode as part of a car-pool in the employees' parking lot. The petitioner, while walking from the entrance of the parking lot in the direction of the respondent's factory entrance, slipped on ice on the public sidewalk of South Avenue at a point between the parking lot and the main entrance. There is no doubt that the employee was going to work that day and that he was on the public sidewalk for the purpose of entering the factory. He was severely and seriously injured.
An employee who walks on a public sidewalk, even though that sidewalk may be in front of the employer's plant, is not ordinarily entitled to compensation since the public sidewalk is used by the public generally; and the courts have adopted the rule that there must come a time when the employee is on his own, and injuries sustained by employees when going to or returning from their regular place of work are not per se deemed to arise out of and in the course of their employment. Ordinarily the hazards they encounter in such journeys are not incident to the employer's business, but this general rule is subject to exceptions which depend upon the nature and circumstances of the particular employment. McCrae v. Eastern Aircraft , 137 N.J.L. 244 (Sup. Ct. 1948).
In that case the court held that by placing a traffic officer in the highway at the time its employees were passing
across it to reach a parking lot, the employer assumed control of the highway.
In Gullo v. American Lead Pencil Co. , 119 N.J.L. 484 (E. & A. 1937), the court said that there were a number of entrances to the factory and the respondent, when she fell, was passing in front of the large gates intending to use the smaller entrance when she slipped on ice in front of the entrance in front of the factory which she did not intend to use and was injured.
The court said at the moment of the accident the respondent was not an employee. The time was her own. She could proceed or turn back. She was in no sense in the employ of the employer. The court said further that authorities all recognize that there must be some relation of the place of injury to the employment in that it is provided by the employer for the employees' use. The street was a public highway ...