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Risk Must be Incident to the Employment-In order to be compensable the injury must result from a danger that had its origin in a risk connected with the employment and which flowed from that source as a rational consequence. It need not have been a danger that could have been anticipated or foreseen as likely to arise; but viewed in retrospect it must appear to be a danger incident to the employment.

The decisions indicate that the courts are sometimes rather "at sea" when trying to determine whether or not an injury arose out of the employment. Many of them have adopted the rule that, if the public generally, in making use of the place where the employee's duties require him to be, are exposed to the same dangers and in like degree that the employee is, an injury to him from any of such dangers does not arise out of the employment, because not incident to it.9

This rule can only work harm, as it is not a statement of law. It probably is an outgrowth of the attempt to state a rule applicable to dangers to which all mankind are alike exposed, without regard to where they are or what they are doing. Injury to an employee in the course of his employment, inflicted by a tornado which demolishes the entire town in which he works, is not due to a danger that is incident to his employment; there being nothing about his place of work rendering him peculiarly liable to injury from such source.

If a butcher cuts his hand while cutting meat, his injury comes from a danger incident to his employment; and it makes no difference that every housewife in the land, and every other person, for that matter, is bach Co. v. Hollenbach, Ky., 204 S. W. 152, 2 W. C. L. J. 493; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458.

(8) Kimbol v. Industrial Acc. Com'n, 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B 595, Ann. Cas. 1917E 312; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F 1164; Mueller Constr. Co. v. Industrial Board, 283 11. 148, 118 N. E. 1028, 1 W. C. L. J. 943; McNichol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A 306, 4 N. C. C. A. 522.

(9) See in this respect the portion of this article entitled "Dangers of the public highways."

exposed to the same danger, and in like degree, when attempting to cut meat.

If the danger is one to which the employee is exposed by reason of his employment taking him to the place, at the time, in question, then the injury may be said to arise out of, and be incident to, the employment.

The rule adopted by some of the courts that, "the causative danger must be peculiar to the work and not common to the neighborhood," is therefore not strictly cor

rect.

Acts Personal to the Employee-Injuries may arise out of the employment, that is, be incident to the employment, although sustained while performing acts essential to the personal comfort and convenience of the 'employee, as where he is injured while preparing to begin or leave off work, or in satisfying his thirst, or in obtaining shelter from a storm.10

Where an employee, during a lull in the work, stepped out of the shipping room in which he worked into a box car to smoke, and in striking a match on his trousers set fire to an oil-soaked apron, which he wore, and was seriously burned, it was held that the accident arose out of and in the course of his employment.11

Such acts are held to be necessary to life, comfort and convenience of a workman while at work, though personal to himself, and not acts of service, and are incidental to the service.

Touching upon the use of tobacco, the Court in one case said: "We have the tobacco habit with us, and must deal with it as it is. It will not do to say that mankind would be better for a lack of the weed, even if that statement be true. Tobacco is universally recognized to be a solace to him who uses it, and it may be that such

(10) De Mann V. Hydraulic Eng. Co., 192 Mich. 594, 159 N. W. 380; Zabriskie v. Erie R. Co., 85 N. J. L. 157, 88 Atl. 824, 4 N. C. C. A. 778: Carinduff v. Gilmore. 7 B. W. C. C. 981; Chludzinski v. Standard Oil Co., 176 App. Div. 87, 162 N. Y. Supp. 225. (11) Dzikowska 103 Atl. 351.

v. Superior Steel Co., Pa.,

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has the right to require his employees to work in the manner desired by him, and when an employee deliberately violates the employer's instructions and thereby increases the risk of injury to himself, he may or may not be barred from recovering for an injury brought on by such misconduct, depending upon the provisions of the Act in the particular jurisdiction. It is suggested, however, that when an employee is injured while doing the work he is employed to do, although in violation of instructions, and in a manner involving more danger than that he was told to pursue, he should not be denied recovery on the ground that, by adding an unnecessary risk to the employment, his injury did not arise out of the employment, or in the course of the employment.

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The contrary has been held, however, in a New Jersey case. In that case it peared that the employee was directed to throw some wood from a pile to an engine furnace, to be placed in the furnace by his employer; that the employee was told two or three times to take the wood from the opposite side of the pile from a rapidly moving saw, and to keep away from the saw; that he violated these instructions by taking the wood from the side in close proximity to the saw, and in some manner let his hand come in contact with the saw, receiving a serious injury. It was held that the employee was not acting within the sphere of his employment, and could not recover. In so ruling, the Court in part said: "There was a safe place to work and a dangerous place to work at the fuel pile. The respond

(12) Whiting-Mead Co. V. Industrial Acc. Com'n, Cal., 173 Pac. 1105, 17 N. C. C. A. 959.

ent, as was his lawful right, commanded the petitioner to work on the safe side of the fuel pile in throwing the wood to the furnace. That then became the sphere of the respondent's employment of the petitioner, and to remove any uncertainty in fixing the sphere of employment between the safe and unsafe side of the fuel heap, the respondent twice ordered the petitioner to keep away from the vicinity of the saw. When the petitioner went, against the respondent's orders, in close proximity to the saw to throw over the fuel to the furnace, it was a new or added peril to which the petitioner, by his own conduct, exposed himself; a peril which his contract of service neither directly nor indirectly involved. or obliged him to encounter. It did not belong to, nor was it connected with, what the petitioner had to do in fulfilling his contract of service on the safe side of the fuel pile."13

Here the workman was engaged in doing what he was employed to do, what he was expressly directed to do by his employer. His violation of orders was in respect to the manner of doing the work, an incident of the work, and unless recovery was prohibited by some other provision of the compensation act, recovery should have been allowed. The reasoning in the case referred to, carried to its conclusion, would limit the rights of employees to an extent never contemplated by the legislature. It could be employed to defeat recovery in cases where the employee negligently performed his work in violation of instructions. Such violation could be said, in many instances, to create a danger to himself and others not present when he was exercising reasonable care. Hence, such disobedience added a risk not contemplated when he was employed, and but for the conduct of the employee would have had no existence.

Assaults-Injury due to a willful assault by a fellow employee or a third person may arise out of the employment. When the

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nature of the employment is such as naturally to invite an assault, or when the employee is exposed to an assault by the character of his work, as when he is protecting or in charge of his employer's property, and the assault naturally results because of the employment and not because of something unconnected with it, so that it is a hazard or special risk of the work, it arises out of the employment.

14

So, the injury or death was held to arise out of the employment, where a cashier was assaulted and killed for the purpose of robbing him of his employer's money;11 where a schoolmaster in an industrial school was assaulted by his pupils ;15 where a foreman whose duty it was to hire men of a rough class, was assaulted by a man to whom he refused work;16 where a mill superintendent was shot by a trespasser whom it was his duty to remove; where an employee, whose duty it was to collect shortages from deliverymen, was shot as the result of a quarrel with one of them about collections; where a gamekeeper was assaulted by a poacher;19 and where a night watchman was on duty at the time he was assaulted.20

17

In a case in which recovery was sought for the death of a night watchman, who was assaulted and killed while on duty, the Court said: "As we understand the briefs, counsel for both parties concede that the real question is, 'Was Christensen assaulted because he was Christensen, or was it because he was the night watchman of the building?' Even though the assailant was

(14) Nisbet v. Rayne, 103 L. T. 178, 26 T. L. Rep. 632 (1910), 2 K. B. 689, 3 B. W. C. C. 507.

(15) Trim Joint Dist. School v. Kelly (1914), A. C. 667.

(16) Weekes v. Stead & Co., 30 T. L. Rep. 586, 7 B. W. C. C. 398, 83 L. J. K. B. 1542, 58 Sol. J. 633.

(17) Re Reithel, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A 304.

(18) Polar Ice & Fuel Co. V. Mulray, Ind. App., 119 N. E. 149.

(19) Anderson v. Balfour (1910), 2 I. R. 497. (20) Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96, 115 N. E. 149; Chicago Dry Kiln Co. v. Industrial Board, 276 Ill. 556, 114 N. E. 1009; Hellman v. Manning Sand Paper Co., 176 App. Div. 127, 162 N. Y. Supp. 335.

a personal enemy of the deceased, plaintiff in error would still be liable if the assault was made because he was the night watchman, engaged at the time in the duties of his employment."21

Street Accidents-In regard to injuries. received by employees while using the public streets and highways in the course of their employment, the courts have not formulated any rule of value for determining whether or not the accident or injury arises out of the employment. The test hereinbefore stated is good enough as far as it goes, but it is too general, in view of the applications made of it by the courts in cases of this kind. Many courts have adopted the rule that when an employee is injured in the street from a cause to which all other persons using the street are likewise exposed, the injury cannot be said to arise out of the employment.

But on the one hand, it has been held that where a solicitor and collector for a life insurance company was injured by a street car while he was running to board another car, in the course of his employment, such injury arose out of the employment ;22 while on the other hand, it has been held that an employee whose duties took him into the streets, and who was injured by slipping on an ice-covered sidewalk while going to board a street car, was not injured by an accident arising out of his employment.2

In the former case, it was said by the Court: "In the case at bar, the workman to do the work of his employment must continually stand in danger of receiving an injury from accidents resulting from exposure to whatever risks and hazards are commonly attendant on the use of public streets and conveyances; which risks to him are greater because more constant than those that are incidental to the occasional

(21) Ohio Bldg. Vault Co. V. Industrial Board, 277 Ill., 96, 115 N. E. 149.

(22) Moran's Case, Mass. (1920), 125 N. E 591, 5 W. C. L. J. 400.

(23) Hopkins v. Michigan Sugar Co., 184 Mich 87, 150 N. W. 325, L. R. A. 1916 A, 310, 10 N. C. C. A. 345. See similar holding in Donahue's Case. 226 Mass. 595, 116 N. E. 226, L. R. A. 1918A 215 14 N. C. C. A. 491.

and casual use of such streets by persons who use them in the ordinary way."

In the latter case the Court said: "Slipping upon snow-covered ice and falling while walking or running is not even what is known as peculiarly a 'street risk;' neither is it a recognized extra hazard of travel, or particularly incidental to the employment of those who are called upon to make journeys between towns on business missions. This unfortunate accident resulted from a risk common to all, and which arose from no special exposure to dangers of the road from travel and traffic upon it." The reader may reconcile these cases if he can.

In another case it appeared that an employee's duties required him to write letters and mail them at a street box, and that while returning to his place of employment, after mailing a letter, he was struck. and injured by an automobile. It was held that the injury arose out of his employment, because "the accident was a natural accident of his work resulting from the exposure occasioned by the necessity of his going upon the street while performing such work."

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Of these cases it is suggested that the Michigan case is entirely wrong, the Massachusetts case partly wrong, and that in the California case the Court has taken the correct view. When the place of work of an employee is the public streets, then the dangers incident to the use of such streets become dangers that are incident to his employment; and the fact that the traveling public generally are equally exposed to such dangers, cannot have any bearing upon the question. Those dangers are incident to the employment as matter of fact, and this fact is not changed by dragging into the question extraneous and immaterial facts for the purpose of spinning nice theories. The employee is subjected to the dangers

(24) Globe Indemnity Co. v. Industrial Acc. Com'n, 36 Cal. App. 280, 171 Pac. 1088, 2 W. C. L. J. 31, 16 N. C. C. A. 907.

of the street in exactly the same manner in which a factory worker is subjected to the dangers of the factory while in the course of his employment. Nor does it make any difference that the employee is subjected to greater risks of injury because they are more constant than those that are incidental to the occasional and casual use of the streets by persons who use them in the ordinary way. It makes no difference whether the risks he is exposed to are more or less than those to which the public generally are exposed. They are dangers peculiar to the place of the employment, and it is of no consequence where that place is. "The causative danger was peculiar to the work, in that, had he not been on the street in the course of his duty, he would not have been injured."25

However, in order that dangers of this character may be said to be incident to the employment, the work of the employee must take him into the streets; and when he incurs the dangers of the streets for purposes of his own, entirely unconnected with his employment, he cannot recover compensation for injuries. resulting therefrom.20

Burden of Proof-The burden is upon the claimant to show by competent evidence, not only the fact of the injury, but that it occurred in connection with the employment.27

He must produce evidence from which the inference can be logically drawn that

(25) Globe Indemnity Co. v. Industrial Acc. Com'n, 36 Cal. App. 280, 171 Pac. 1088, 2 W. C. L. J. 31. 16 N. C. C. A. 907.

(26) Balboa Amusement Co. V. Industrial Acc. Com'n, Cal. App., 171 Pac. 108, 1 W. C. L. J. 747, 16 N. C. C. A. 906.

(27) Dragorich v. Iroquois Iron Co., 269 Ill. 478; Ohio Bldg. Vault Co. v. Industrial Board, 277 Ill. 96, 115 N. E. 149; Hills v. Blair, 182 Mich. 20; Robinson v. State, Conn., 104 Atl. 491, 2 W. C. L. J. 779, 17 N. C .C. A. 954; Griffith v. Cole Bros., Ia., 165 N. W. 577, 1 W. C. L. J. 368; In re Savage, 222 Mass. 205, 110 N. E. 283.

the injury arose out of and in the course of the employment. The proof must be based on something more than a mere guess, conjecture or surmise as to what the cause of the injury was."

"The burden is on the claimant. It is not discharged by creating an equipoise. It requires a preponderance."""

"The dependent must go further than simply to show a state of facts which is as equally consistent with no right to compensation as it is with such right. They can no more prevail if factors necessary to support the claim are left to surmise, conjecture, guess or speculation, than can a plaintiff in the ordinary action of tort or conA sure foundation must be laid by a preponderance of evidence in support of the claim, before the dependents can succeed."30

tract.

While it cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be inferred from the same evidence with equal certainty, proof of the alleged fact may be by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion is all that can reasonably be required to establish controverted facts.31

The next article in this series will treat of injuries received while going to and from the place of employment.

St. Louis, Mo.

(28)

C. P. BERRY.

Woods v. Wilson Sons & Co., W. C. & Ins. Rep. (Eng. 1913) 569; Savage v. Aetna Life Ins. Co., Mass.. 110 N. E. 283; Ohio Bldg. Vault Co. v. Industrial Board, 277 II. 96, 115 N. E. 119; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458; Barnabas v. Bersham Colliery Co., 102 L. T. 621, 103 L. T. 513.

(29) Griffith v. Cole Bros., Ia., 165 N. W. 577, 1 W. C. L. J. 368.

(30) Sponatski's Case, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A 333, quoted approvingly in Sanderson's Case, 224 Mass. 558, 113 N. E. 355. (31) Devine v. Delano, 272 Ill. 166; Hills v. Blair, 182 Mich. 20.

MASTER AND SERVANT COMPENSATION ACT.

PAYNE, Director General of Railroads, v. INDUSTRIAL COMMISSION, et al.

Supreme Court of Illinois. Dec. 21, 1920.

129 N. E. 122.

Where boys between 15 and 16 years old, using a machine operated by compressed air, attached the air hose after taking it from a locker, and while playing with hose according to a practice unknown to the employer one of them was killed by shooting air into his body per rectum as he turned to start his work, the injury, though occurring during the course of the employment, did not arise out of the employment within the Workmen's Compensation Act so as to render the employer liable.

CARTER, J. Frederick Eagleson, a boy 17 years old, died as a result of injuries received while in the employ of the Chicago & Eastern Illinois Railroad Company in its shops at Danville, Ill., in January, 1919. Application was made to the Industrial Commission of Illinois for compensation, which was allowed by the arbitrator and later by the Industrial Commis sion. On review by writ of certiorari in the cir cuit court the award of the commission was set aside, and the cause has been brought to this court by writ of error.

The deceased worked in the oil room, so called, of the Chicago & Eastern Illinois shops at Danville for about a month in March and April, 1918, when he was promoted and transferred to what is known as the grease room. The evidence shows that the oil room was about 40x40 feet in size, and the foreman of the oil and grease department sat in the southwest corner of this oil room. Near the northeast corner of this room there was a door in the east wall opening into the grease room, about 12x15 feet in size, and along the south wall of this room were pipes that carried compressed air, with valves and nozzles for attaching hose, and along and on this south wall were also hopper machines for pressing hard grease. The machine at which Eagleson was employed at the time of his injury pressed the grease into flat cakes for use in lubricating the journals of locomotives. There was another machine in the room that pressed the hard grease into round sticks, which were then cut into two-inch sections, for use in the rod cups on the locomotives. These various machines, when filled and closed, were operated by compressed air attached at the tops, and there appears to be nothing dangerous or arduous about this

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