Staubach v. Cities Service Oil Co.

Bobine, J.

This ease comes before us on the return to a rule to show cause why a writ of certiorari should not issue to review a judgment dismissing prosecutor’s petition.

It is conceded that no appeal was taken from the Bureau to the Pleas. Failure to do so is raised and argued. The eases are fully treated in Licker v. J. G. Martin Box Co., 127 N. J. L.

136. The general rule is that a writ does not ordinarily go where an appeal lies.

Petitioner’s husband was killed under circumstances fully stated in the opinion of the Supreme Court in Staubach v. Cities Service Oil Co., 126 N. J. L.

479. The suit in that case was brought September 26th, 1940. The Bureau’s action was previous thereto and on May 24th, 1940. The deceased was killed when a fellow employe threw a quantity of gasoline over him while he was working near an acetyline torch. It occurred in a spirit of skylarking, and the proofs do not show *578 that such conduct was customary and within the knowledge of the employer. The findings of the Bureau are supported by the proofs.

There was testimony that in the summer the men did throw water at one another. The persons in charge of the operation of the plant denied knowledge of this, but assuming knowledge of water throwing at lunch, and when not observed, there is no reason whatever that the employer should anticipate that one employee would destroy another by throwing gasoline over him while he was working with a torch.

The rule will be dismissed, without costs.