
    THE ESTATE OF JOHN BRINSKO, RESPONDENT, v. LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, APPELLANT.
    Argued January 4, 1917
    Decided October 11, 1917.
    On appeal from the Supreme Court.
    For the appellant, Adrian Lyon.
    
    For the respondent, Thomas Brown.
    
   Per Curiam.

This suit was brought in the Middlesex Common Pleas under the Workmen’s Compensation act (Pamph. L. 1911, p. 134, amended Pamph. L. 1913, p. 302), for compensation to the dependent widow and children of John Brinsko, deceased, who met his-death by being run over by a car of the defendant companjf, of which company he was an employe.

After hearing and argument the trial judge found that deceased, while in the “course of his employment” with the defendant company, was run over by one of its cars and killed.

One of the defences interposed was, that at the time decedent met his death he was employed in moving cars engaged in interstate commerce, and that, therefore, the defendant is liable only under the Federal Employers’ Liability act. On this head the trial judge found that for the purposes of the suit, it was not necessary to determine whether the car, which injured and caused the death of the deceased, was engaged in interstate commerce at the time.

With this finding the Supreme Court disagreed, but held that the award made by the trial judge in the Common Pleas was not vitiated on that account, because, on the finding of facts by the judge, the car was not engaged in interstate commerce, nor was the deceased. This was error.

In Dunnewald v. Henry Steers, Inc., 89 N. J. L. 601, this court held that to warrant a recovery under our Workmen’s Compensation act, it must appear that the employe’s death was caused (1) by an accident (2) arising out, aud (3) in the course, of his employment, and that all of these essential facts must be found by the trial judge and must be contained in his written determination.

As a matter of fact the trial judge, in the case at bar, while determining that the deceased’s injury occurred in the course of his employment, failed to find that it arose out of that empernen! or was the result of an accident. And, owing to the defence of interstate commerce, he would have to go a step farther and find whether at the time of the accident the deceased was engaged in interstate or intrastate commerce. As shown above, he noticed the point, but held that it was unnecessary to determine it. If he had held that decedent was engaged in interstate commerce, then he could not have awarded compensation under our Workmen’s Compensation act. See Erie Railroad Co. v. Winfield, 244 U. S. 170; Rounsaville v. Central Railroad of New Jersey, ante p. 176. On the contrary, if he had held that the deceased was engaged in intrastate commerce, then he could have awarded compensation. if he found, as facts, that the deceased came to his death as the result of an accident arising out of and in the course of his employment.

The right of the Supreme Court to review a proceeding under 1 he Workmen’s Compensation act is limited to questions of law, and it cannot review determinations of fact if there is evidence to support them. Dunnewald v. Henry Steers. Inc., supra.

Epon the authority of the Dunnewald case the judgment of the Supreme Court affirming the judgment of the Common Pleas must be reversed, to the end that there may be a new trial and proper determination of the facts in the Common Pleas, either upon the evidence already put in, or such other evidence as the parties may.see fit to offer. ISTo costs will be allowed in this court.

For affirmance—None.

For reversal—-The Chancellor, Ci-iiee Justice, Garrison Swayze, Trenci-iard, Bergen, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 12.  