to be upon the passing train; that if he failed to board it he would be left behind; that he had a right to assume the engineer would run the train at a speed that would enable him to get on in safety; that he was facing the train, which was going directly toward him; that as a matter of common knowledge, one standing in that position cannot form an accurate judgment of its speed until it comes quite near to him; and that his opportunity to observe the speed was limited to the brief space of time that elapsed between the passing of the front end of the engine and the cab, where it was his purpose to get on; and the court determined that, under such circumstances, it is well-nigh impossible to tell the difference between a rate from 4 to 6 miles an hour, when an ordinarily prudent brakeman might get on with reasonable safety, and a rate of from 10 to 12 miles an hour, when it would be dangerous for him to do so,' and that 'all the circumstances tend to show that the knowledge of the speed of the train came to him so suddenly and unexpectedly that he did not have an opportunity to realize and appreciate the danger of getting on.' Conceding the force of the reasoning, we are bound to say that, in our opinion, it cannot be said, as matter of law, to be so incontrovertible that reasonable minds might not differ about the conclusion that should be reached. We therefore hold that the question of assumption of risk was one proper for submission to the jury. * * *" 241 U. S. 317, 36 Sup. Ct. 566, 60 L. Ed. 1016.

In the case under decision the jury have found specifically that the fireman did know, or that by ordinary prudence would have perceived, the dangers normally incident to the passing over the train from which he fell.

In the De Atley Case it was held that the federal Employers' Liability Act abrogated the fellow-servant rule, but in other respects left unimpaired the common-law defense of assumed risk, except in cases covered by some statute enacted for the safety of employees. The risks assumed are the ordinary risks incident to the employment. Those risks, however, are not all that may be assumed. Extraordinary risks created by negligence of the employer may be assumed, if the employee be aware of them, or if they are so obvious that any reasonable person would be aware of them and appreciate them.

"According to our decisions, the settled rule is, not that it is the duty of an employee to exercise care to discover extraordinary dangers, that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinary careful person, under the circumstances, would observe and appreciate them." 241 U. S. 315, 36 Sup. Ct. 566, 60 L. Ed. 1016.

This rule was applied to the facts of De Atley Case in the following manner (italics added):

"Plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and cannot be held to have assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed, until made aware of the danger, unless the speed and the consequent danger were so obvious that an ordinarily careful person in his situation should have observed the one and appreciated the other." 241 U. S. 314, 36 Sup. Ct. 565, 60 L. Ed. 1016.

In the De Atley Case the negligence which created an extraordinary hazard was the negligence of the engineer in operating the train at too great a rate of speed. In this case the negligence which created the extraordinary hazard consisted in starting the train before the fireman was in his place. (Findings 4 and 5, second series.) There was no allegation, no proof, and no finding that the train was operated at too great a rate of speed, or that the speed of the train was negligently increased, or that

the cars were jerked or bumped, or that any negligence whatever, of omission or commission, occurred after the train was started. The danger therefore was the normal danger attending the way which the fireman chose of reaching his place on the engine of the moving train. danger was perfectly obvious to any one.

This

The fireman had a right to assume that the engine would not be started until he was in the engine cab. It was started, however, without him. When he came out of the lunchroom the engine and a number of cars had already gone by, and the train was going forward. He was immediately and manifestly confronted with all the difficulties and dangers to be encountered in reaching his place on the engine. It would be fatuous to say he was not aware of them, and it would be an impeachment of the mental capacity of a competent man to say he did not appreciate them.

The plaintiff says the time was nighttime. It was a night train, and no one was better aware of the darkness than the fireman. The plaintiff says there was smoke. The record does not show, but, if there were smoke, it was a normal incident to the operation of a freight engine. The whole situation created by the engineer's negligence lay before the open eyes of this experienced trainman the moment he stepped out of the lunchroom. He voluntarily chose his course, and voluntarily assumed the risk attending his choice.

In order that the decision may not be misapplied in other cases, the court deems it proper to say that, if the action were prosecuted under state instead of federal law, the court would not consider assumed risk to be involved unless the jury were to find, either by general verdict under proper instructions, or by special finding, that starting the train without the fireman had become such a general practice that the fireman might have anticipated it in this instance. In this state assumed risk is a matter of contract, and not a matter of prudence of conduct. Only those risks are assumed which naturally and normally attend the employment. Extraordinary risks, created by sporadic acts of negligence on the part of the employer, are not assumed. When an employee has been confronted by such a risk, has acted, and has been injured, the question is whether or not his conduct was, under all the circumstances, reasonably prudent; that is, the question is one of contributory negligence. Assuming in this instance that starting the engine without the fireman was a common practice, the practice was one of the conditions of the employment, and the fireman assumed the risk if he continued to work without protest against it, or if he continued to work after unavailing protest. Assuming, however, that starting the engine without the fireman was an unusual occurrence, the question was whether or not a person of the fireman's qualifications and experience, and resting under his duty to reach his engine, might, under all the circumstances, with reasonable prudence attempt to do so by going over the tops of the cars. The question would be a jury question, and if the fireman were found to be negligent, the fact of contributory negligence on his part would not of necessity entirely defeat recovery. The case being governed by federal law, the court has applied that law, as expounded by the Supreme Court of the United States.

The judgment of the district court is affirmed. All the Justices concurring.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

BERKSHIRE.

HOLMBERG'S CASE.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DEPENDENCY OF WIDOW.

By Workmen's Compensation Act, pt. 2, § 7, widow living with husband at time of his death is conclusively presumed to have been wholly dependent upon him for support.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

2. MASTER AND SERVANT - WORKMEN'S ACT-MEMBER OF FAMILY.

COMPENSATION

Daughter of deceased servant's widow, though member of servant's family at time of his death, not being his child, is not entitled to compensation under Workmen's Compensation Act, pt. 2, § 7, as amended by St. 1914, c. 708, § 3, nor under last paragraph of section 7.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DEPENDENCY OF CHILD BY FORMER WIFE.

Son of deceased servant, child by his former wife, and under age of 18, though not living with father at latter's death, under Workmen's Compensation Act, pt. 2, § 7, par. c, as amended by St. 1914, c. 708, § 3, is conclusively presumed to have been wholly dependent for support on deceased servant, having no surviving parent.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

4. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-APPORTIONMENT OF AWARD TO WIDOW AND

CHILDREN.

Under Workmen's Compensation Act, pt. 2, § 7, as amended by St. 1914, c. 708, total compensation found to be due deceased servant's dependents was properly apportioned equally between widow and each of two surviving children of servant one being son by former wife, compensation due widow's child to be paid to her, and that due other child to be paid to his guardian.

(For other cases, see Master and Servant, Dec. Dig. § 386[5].)

Appeal from Superior Court, Berkshire County; Loranus E. Hitchcock. Judge.

Proceedings by Matilda Holmberg and others under the Workmen's Compensation Act for compensation for the death of her husband, Charles Holmberg. the employee, opposed by the General Electric Company, the employer, and the Liberty Mutual Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the superior court, and Matilda Holmberg appeals. Decree of the superior court modified, and. as modified. affirmed.

P. J. Moore, of Pittsfield, for widow.

Robt. M. Stevens. of Pittsfield, for Ernest Holmberg.

Decision rendered, Oct. 10, 1918. 120 N. E. Rep. 353.

Act.

CROSBY. J. This is a proceeding under the Workmen's Compensation Charles Holmberg, the employee, received personal injuries arising out of and in the course of his employment which resulted in his death. He left a widow, Matilda, and their child, Neilson Holmberg. Mrs. Holmberg's daughter Alice, a child of a former marriage, lived with the employee and her mother at the time of his decease. The employee also left a son Ernest Holmberg, a child by a former wife, who lived with the decedent's daughter in Wisconsin. All the above named children are under the age of eighteen years. The question at issue is, who are entitled as dependents to share in the payments due on account of the death of the employee?

[1] It is the contention of the widow that she is entitled as sole dependent to the total compensation due under the act. As the widow was living with her husband at the time of his death, she is conclusively presumed to be wholly dependent upon him for support. St. 1911. c. 751. pt. 2, § 7(a).

[2] The widow's daughter Alice. although a member of the employee's family at the time of his decease. not being his child. is not entitled to compensation under St. 1911. c. 751, pt. 2, § 7, as amended by St. 1914, c. 708, § 3; nor is she entitled to compensation under the last paragraph of section 7, because, as was said in Coakley's Case, 216 Mass. 71, at page 73, 102 N. E. 930, 931 (Ann. Cas. 1915A, 867):

*

must mean cases

"'All other cases,' and 'such other cases,' other than those specifically provided for in paragraphs (a), (b) and (c) of the section." McNichol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306.

[3] The son Ernest Holmberg, a child by a former wife, and under the age of eighteen years is conclusively presumed to be wholly dependent for support upon the deceased employee under. paragraph (c) of section 7, because as to him there is no surviving parent. The fact that Ernest was not living with his father at the time of the decease of the latter does not affect the presumption. There is nothing in the statute correctly construed which provides that the child of a former marriage shall be living with the employee at the time of his (the employee's) death to be entitled to compensation.

Under the Workmen's Compensation Act as originally enacted (St. 1911, c. 751, Part. II, § 7), it was held in Coakley's Case, supra, that if the employee was survived by a wife who was living with him at the time of his death and by children of such wife, and also by a child of a former wife who was under the age of eighteen years and who was living with him at the time of his death, such child by a former wife having no surviving dependent parent was conclusively presumed to be wholly dependent, as was the widow, and entitled to share equally with her the compensation payable under the act.

It followed that, under section 7 as originally enacted, the children of the deceased who were also children of the widow were not conclusively presumed to be dependent because as to them there was a surviving parent; but after the decision in Coakley's Case, apparently to remedy this inequality between children of the employee and the widow, and children of a former marriage, and for the purpose of permitting all children of the deceased to share equally in the payments of compensation under the act, section 7 was amended by St. 1914, c. 708, which provides in part as follows:

"(c) A child or children under the age of eighteen years, upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent; Provided, that in the event of the death of an employee who has at the time of his death a living child or children by a former wife or husband, under the age of eighteen years, * said child or children shall be con

clusively presumed to be wholly dependent for support upon such deceased employee, and the death benefit shall be divided between the surviving wife or husband and all the children of the deceased employee in equal shares, the surviving wife or husband taking the same share as a child. The total sum due the surviving wife or husband and her or his own children shall be paid directly to the wife or husband for her or his own use and for the benefit of her or his own children, and the sums due to the children by the former wife or husband of the deceased employee shall be paid to their guardians or legal representatives for the benefit of such children."

[4] It is plain that under the statute above quoted and in force at the time of the death of the employee, the total compensation found to be due by the Industrial Accident Board was correctly determined by it, and is to be apportioned equally between the widow and each of the surviving children of the deceased employee-the compensation due to Neilson Holmberg to be paid to the widow, and the sum due to Ernest Holmberg to be paid to his guardian.

The decree is to be modified by providing that the amount due Ernest Holmberg shall be paid to his guardian; and as so modified it is affirmed. So ordered.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
BERKSHIRE.

KNIGHT'S CASE.

IN RE TRAVELERS' INS. CO.*

1. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-CAUSE OF DEATH-ISSUE OF FACT.

Whether claimant had established causal connection between accident to deceased servant in course of employment and his death, more than three months later, was issue of fact to be determined by Industrial Accident Board, under Workmen's Compensation Act, pt. 3, § 10, as amended by St. 1912, c. 571, § 15.

(For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACT-FINDING OF ACCIDENT BOARD-REVIEW. Decision of Industrial Accident Board in workmen's compensation case on issue of fact is not open to revision by Supreme Judicial Court, finding being conclusive if with substantial support in evidence.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FINDING OF ACCIDENT BOARD-SUPPORT BY EVIDENCE.

In workmen's compensation case, evidence held insufficient to justify Supreme Judicial Court in holding as matter of law that finding of Accident Board, that claimant had failed to sustain burden to prove deceased * Decision rendered, Oct. 10, 1918. 120 N. E. Rep, 395.