[107 NJSuper Page 255] Petitioner, Louise A. Reilly appeals from a judgment of the Division of Workmen's Compensation dismissing her dependency claim petition for compensation. The petitioner, widow of Raymond Robert Reilly, had filed the petition seeking statutory workmen's compensation dependency
benefits for herself and two of her children, Timothy and Christine Reilly, and statutory burial allowance, alleging that the death of her husband resulted from personal injuries sustained by accident arising out of and in the course of employment with the respondent Weber Engineering Co., Inc. (Weber).
The material facts in the case are not in dispute. Raymond Robert Reilly died on April 8, 1966 as a result of injuries which he received when he fell from a catenary structure some 35 feet above railroad tracks of the Erie Lackawanna Railroad Company adjoining an industrial complex in Bloomfield, in which Weber's plant is located. At the time decedent was attempting to rescue a young boy who was dangling by one foot which was caught in high tension wires on the catenary.
At the time of the attempted rescue, decedent was employed by Weber as a "truck driver and warehouse man," working three days a week. His wages from this employment were $90 a week. His employment with Weber began in 1959 and continued until the time of his death. He was also, at the time of his death, a fire captain in the Fire Department of the City of Newark.
The respondent's plant, located in the Parkway Industrial Park in Bloomfield, consisted of an office on the first floor of a building at 5 Lawrence Street and a shop in a building about 100 yards away in the parking area. The distance between the shop and the place where the accident occurred was about 80 to 85 yards. On the afternoon of April 8, 1966 decedent was engaged in his regular duties at the shop, working on maintenance of construction equipment with two co-workers, William and John DeMichele. Two other employees, Anna M. LaCapra and Philip Hagin, were at the respondent's office at the time; Miss LaCapra, a secretary, being in charge of the office in the absence of the president of the corporation. None of the three employees in the shop at the time had any supervisory authority over any other. When the president of the corporation was not in attendance,
"if something had to be done, those who remained discussed what had to be done and determined what they thought was the best way of accomplishing it."
In the early afternoon Miss LaCapra, on hearing a "constant roar of sirens" and observing police cars and a fire deputy car coming into the industrial complex, and being unable to work, called the shop on the "Inter-com." She spoke to William DeMichele and asked him to check and let her know what was going on outside. He told her, "We'll find out," and then said to his brother John and decedent, "Let's see what it is." The three of them then walked out to a loading platform in back of the shop and saw people running behind a boiler house, "the last building at the back of the plants." Decedent left the loading platform to see what was happening, crossed over "spur tracks" at the platform, and went through a gate about 30 feet from the back of the Weber shop and onto a road leading to the back of the industrial complex. Accompanied by Philip Hagin, who had left the Weber office to investigate the commotion, decedent rounded the boiler house. A young boy was dangling by one foot which was caught in high tension wires on a catenary structure above the railroad tracks adjacent to the complex.
Decedent and Philip Hagin were standing near a police radio car at the scene when a report over the radio announced that the electric power had been shut off. William Suprenant, from a nearby luncheonette, then climbed up to the catenary. The electric current had not been cut off. In his attempt to rescue the boy, William Suprenant received an electrical shock and fell across some wires with his leg swinging back and forth hitting the catenary structure. Decedent, having climbed to the top of the catenary structure, and using a stick which one of the police officers had handed to him, tried to keep William Suprenant's leg away from the catenary. He, too, received an electrical shock. He fell from the catenary onto the tracks some 35 feet below, and died from his injuries upon arrival at the hospital a short while later.
He was survived by his wife, the petitioner-appellant, and their three children, Raymond, aged 25, Timothy, aged 24, and Christine, aged 14. It is not claimed that Raymond, who was then attending medical school and not living at home with his parents, was dependent upon decedent at the time of the accident. Timothy and Christine were both living at home with their parents at the time of decedent's death. It is claimed that Timothy was partially dependent upon decedent at the time of his death. Timothy suffered from cerebral palsy, and although employed and earning about $3,600 a year at the time, was supported in part by decedent to the extent of decedent's furnishing him with room and board, paying for his automobile expenses including insurance, and paying for his life insurance. There is no question as to petitioner's or Christine's total dependency upon decedent at the time of his death. See N.J.S.A. 34:15-13. The cost of burial exceeded the applicable statutory burial allowance. No claim is made for any medical, surgical or hospital expense.
The judge of compensation dismissed the dependency claim petition upon his determination that the accident did not arise out of and in the course of decedent's employment with respondent. He made ...