Palacono v. Garfield Manufacturing Co.

=❖ h* ❖ # % * # I do find and determine from the evidence that the petitioner has failed to sustain the averments of his petition, or otherwise to establish ' a right to compensation under the statute. The burden of proof rests upon the petitioner in .showing by affirmative proof that the injuries complained of herein are the result of an accident, arising out of and in the course of his employment with the respondent. In this he has failed in his proof. Upon reviewing the testimony, it appears that petitioner was struck down and seriously injured by a “hit and run” automobilist, while in an act of crossing the street on which the respondent’s plant is located in the town of Garfield, preparatory to reporting for work after the conclusion of the noontime lunch period. By rules, established by the respondent, employes were given one hour for lunch and recreation from twelve o’clock noon until one p. M. During this hour, the employes were permitted to leave the premises and partake of their luncheons wherever they desired. It must therefore be conceded that during this lunch period, the [758] contract of employment was temporarily suspended. Surely the employes were performing no work nor furthering the interest of the respondent while away from the premises and while on a mission purely personal to themselves. The accident sustained by the petitioner was one not arising out of and in the course of employment, but an ordinary street hazard, the risk of which is commonly shared by the general public. In Bryant v. Fissell, 84 N. J. L. 72, the court held “an accident arises in the course of employment if it occurs while the employe is doing what a man so employed may reasonably do within the time which he is reasonably employed and at place where he may reasonably be during that time. An accident arises out of the employment when it is something, the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fullfilling his contract of service.” * * S: # * * ■ * John J. Stahl, Referee.