
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FABIANO AGRESTA, PETITIONER, v. NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, RESPONDENT.
    Decided September 3, 1936.
    For the petitioner, Manuel J. Preola.
    
    For the respondent, Charles J. Gormley.
    
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The facts in the case sub judice are admitted. Petitioner was employed by the respondent company as a track laborer who at the time of accident was tightening a bolt on a rail on the coal bridge located in the respondent’s yards at Weehawken, New Jersey. This bridge was used to unload coal cars into bins which coal was transported by boats outside of state.

Petitioner stresses point that compensation had been paid under the state statute. The payment of compensation is not an admission of liability and does not bar employer from interposing any valid defense at time of hearing.

I have carefully read the briefs submitted by both petitioner and respondent and made a careful study of cases referred to as well as other cases analogous to the issue.

The burden placed upon petitioner is to prove that his case comes within the state statute. That doctrine is promulgated in the case of Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 N. J. L. 414; 108 Atl. Rep. 364; Lincks v. Erie Railroad Co., 91 N. J. L. 166; 108 Atl. Rep. 176; Brinsko’s Estate v. Lehigh Valley Railroad Co., 90 N. J. L. 658; 102 Atl. Rep. 390; Hart v. Central Railroad Co., 106 N. J. L. 31; 147 Atl. Rep. 733, and Flynn v. New York, Susquehanna and Western Railroad Co., 90 N. J. L. 450; 101 Atl. Rep. 1034.

In Vincelli v. New Jersey Central Railroad Co., 98 N. J. L. 726; 121 Atl. Rep. 132, the test as to whether or not an employe was engaged in interstate or intrastate commerce was stated to be “not whether an employe is at the time of the accident engaged in work indispensable to functioning of the railroad as an interstate carrier but whether employe is working upon some instrumentality used by the carrier in its interstate business.

In the Hart case above cited the court stated “some instrumentalities of interstate railroad, such as bridges, stations, road beds are permanently in interstate commerce.” In Frazier v. Hines, 260 Fed. Rep. 874; McLean v. Boston and Maine Railroad, 116 Atl. Rep. 435, and Johnson v. Atlantic Coast Line, 107 S. E. Rep. 31, employes injured in repair of road bed were held to be engaged in interstate commerce.

I am, therefore, holding that petitioner was engaged in interstate commerce for the reason that: 1. Bridge in question was without doubt an instrumentality of interstate commerce by reason of its intimate and actual connection with such commerce. 2. The work being done by petitioner was a required act for the purpose of repairing an agency devoted to such commerce and which if not repaired would impede the same, and in view of these holdings I am dismissing petition.

It is, therefore, ordered that judgment be entered in favor of the respondent and that the petition herein be and the same is hereby dismissed.

John C. Wegner, Referee.  