Jackson v. Erie Railroad

The opinion of the court was delivered by

This writ brings under review an' order of the Passaic Court of Common Pleas, made on the 18th day of December, 1912, under which the plaintiff in certiorari was ordered to pay the petitioner the sum of $6 per week for a period of three hundred weeks, under the act of the legislature approved April 4th,. 1911 (Pamph. L., pp. 134, 763), known as the Employers’ Liability act. The record shows that Sarah J. Jackson, the petitioner, was a sister of Walter H. Jackson, who suffered injuries, from which he died on July 24th, 1912. The trial court found,, as a fact, that the deceased was at the time of the accident in the employ of the Erie Eailroad Company, also, the petitioner was partially dependent upon the deceased, her brother. The record shows that the judge making the order had evidence before him which amply supports the order in these two particulars; hence this court will not sot the order aside, on either of these grounds, viz., that, at the time the deceased was killed, he was not in the employ *551of the Erie Railroad Company, or that the dependency of the petitioner on the deceased vras not proved. On the first ground it is argued that as the deceased, Avlien injured, Avas employed on a Avork train on the Ringwood branch of the Erie Railroad Company, the cars used were oAvned by the Wilson & English Company, an independent contractor, for hauling gravel and sand in building a new branch for the Erie Railroad Company, but the contract between the two companies was not put m evidence, nor the exact relationship betAveen the two companies shown. In order to bring the ease Avithin the principle of Delaware, &c., Railroad Co. v. Hardy, 59 N. J. L. 35, the plaintiff in certiorari must show that the servant has, in fact, consented to the transfer of his services to the neAv master and accepted him as his master pro hue vice, that ho has entered upon the service and submitted himself to the direction and control of the new master, but this Aims not shown. On the second ground, it is urged, because the statute provides “actual dependents” (Pamph. L. 1911, p. 139) and “no dependents.” The court having found the petitioner “partially” dependent, the word “actual” does not include “partial;” aa’c cannot adopt this construction; dependents in these statutes mean dependent for the ordinary necessaries of life, one who looks to another for support or help; if partially dependent, they must necessarily he actually dependent.

The judgment is affirmed.