Distinction between "arising out of" and "in course of" the duty which he is employed to perform. It arises 'out of' the employment when there is apparent to the rational mind upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It needs not to have been foreseen or expected, but after the event it must appear to have had its origin in the risk connected with the employment, and to have flowed from that source as a rational consequence. "The exact words to be interpreted are found in the English Workmen's Compensation Act, and doubtless came thence into our Act. Therefore, decisions of English courts before the adoption of our Act are entitled to weight. Ryalls v. Mechanics Mills, 150 Mass. 190. It there had been held that injuries received from lightning on a high and unusually exposed scaffold, Andrew v. Fallsworth Industrial Society, (1904) 2 K. B. 32; from the bite of a cat habitually in the place of employment, Rowland v. Wright, (1908) 1 K. B. 963; from a stone thrown by a boy from the top of a bridge at a locomotive passing underneath, Challis v. London & Southwestern Railway, (1905) 2 K. B. 154; and from an attack upon a cashier travelling with a large sum of money, Nisbet v. Rayne & Burn, (1910) 2 K. B. 689, all arose in the course and out of the employment, while the contrary has been held as to injuries resulting from a piece of iron thrown in anger by a boy in the same service, Armitage v. Lancashire & Yorkshire Railway, (1902) 2 K. B. 178; from fright at the incur Distinction between "arising out of" and "in course of" sion of an insect into the room, Craske v. Wigan, (1909) 2 K. B. 635; and from a felonious assault of the employer, Blake v. Head, 106 L. T. Rep. 822. "The definition formulated above when referred to the facts of these cases, reaches results in accord with their conclusions. Applying it to the facts of the present case, it seems plain that the injury of the deceased arose 'out of' and in 'the course of his employment.' The findings of the Industrial Accident Board in substance are that Stuart McNicol, while in the performance of his duty at the Hoosac Tunnel Docks as a checker in the employ of a firm of importers, was injured and died as a result of 'blows or kicks administered to him by . . (Timothy) McCarthy,' who was in 'an intoxicated frenzy of passion.' McCarthy was a fellow-workman who 'was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow-employés, all of which was known to the superintendent Matthews,' who knowingly permitted him in such condition to continue at work during the day of the fatality,-which occurred in the afternoon. The injury came while the deceased was doing the work for which he was hired. It was due to the act of an obviously intoxicated fellow-workman, whose quarrelsome disposition and inebriated condition were well known to the foreman of the employer. A natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his companion. The case at bar is distinguishable from a stabbing by a drunken stranger, a felonious attack by a sober fellow-workman, or even rough sport or horse-play by companions who might have been expected to be at work. Although it may be that upon the facts here discussed a liability on the part of the defendant for negligence at common law or under the Employers' Liability Act might have arisen, this decision does not rest upon that ground, but upon the causal connection between the injury of the deceased and the condition under which the defendant required him to work. A fall from a quay by a sailor while returning from shore leave, Kitchenham v. Owners of S. S. Distinction between "arising out of" and "in course of" Johannesburg (1911), 1 K. B. 523; 6 (1911), A. C. 417; a sting from a wasp, Anys v. Barton (1912), 1 K. B. 40; and a frostbite, Warner v. Couchman (1912), A. C. 35, all have been held to be injuries not 'arising out of' the employment. But we find nothing in any of them in conflict with our present conclusion. Nor is there anything at variance with it in Mitchinson v. Day Bros. (1913), 1 K. B. 603, where it was held that injuries resulting from an assault by a drunken stranger upon an employé engaged at his work on the highway did not arise out of the employment. That was a quite different situation from the one now before us." McNichol v. Patterson Wilde & Co., and Employers' Liability Assur. Corp. Lim., 215 Mass. 000; 102 N. E. Rep. 697. Under the New Jersey Act it has been held that an accident arises "in the course of the employment" when it occurs while the employé is doing what a man so employed may reasonably do within the time during which he is employed and at a place where he may reasonably be during that time. Bryant v. Fissell, N. J. Law, ; 86 Atl. Rep. 458. The court reaffirmed the doctrine announced in two cases arising under the British Workmen's Compensation Act. Fitzgerald v. Clarke & Son (1908), 2 K. B. 796; 1 B. W. C. C. 197; Moore v. Manchester Liners (1910), A. C. 498; 3 B. W. C. C. 527. In the last-mentioned case a fireman on board a steamship lying off South Brooklyn went on shore for the purpose of obtaining for himself certain necessaries which were not provided by the owners of the ship. On returning to the ship he fell off a ladder, which was the only means of access from the dock to the ship, and was drowned. It was held by the House of Lords that the accident arose out of and in the course of the fireman's employment and therefore that the widow was entitled to compensation. An accident arises "out of" the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A "risk incidental to an employment" is Distinction between "arising out of" and "in course of" one which belongs to or is connected with the duties which a workman has to perform in fulfilling his contract of employment. Bryant v. Fissell, N. J. Law ; 86 Atl. Rep. 458. The question of when a man's work begins and when it terminates, or, in other words, when the relation of master and servant begins or ends, is closely related to the same provision. As a general proposition an accident which happens while a man is going to and from his work neither "arises out of" nor occurs "during the course of" his employment, if it happens off the master's premises unless the master transports the workmen to and from their work. But there are enough exceptions to this rule to make it a pregnant source of controversy, as the cases cited hereafter will demonstrate. In other cases workmen have been injured when they have been doing something on the master's premises which was entirely disconnected with their own duties, or in doing something or operating some machine which they have been specifically ordered not to do or to refrain from operating. The Federal Workmen's Compensation Act (Act of May 30, 1908, extended by the Acts of March 4, 1911 and March 11, 1912), applying to workmen employed in certain occupations under the United States Government, provides that a laborer who "is injured in the course of such employment" shall be entitled, etc. This Act has been construed by a series of decisions of the Solicitor of the Department of Commerce and Labor, and many of the cases have been reviewed by the Attorney General. The adjudications under the British Workmen's Compensation Act are also in point. There are a number of decisions by the various industrial boards and commissions, which administer the workmen's compensation laws of several of the American States, where this question has been discussed. There are also a good many miscellaneous decisions of the courts of the various States of the Union where the question is considered as to whether or not a man was injured during the course of his employment. Naturally these latter cases were brought Going to and from place of employment under the common law or under various employers' liability acts, but they are also instructive under the workmen's compensation statutes. Wherever such cases are cited the letters (E. L.) in parentheses immediately precede the title so they may be distinguished from compensation cases proper. There is one especially important distinction to be drawn between the cases arising under the old employers' liability acts and those under the compensation statutes. Under the compensation laws it does not matter whether the workman was injured by reason of the fault of the employer or of that of someone else, so long as the injury arose out of and in the course of the workman's employment. For example, if a driver of a cart while engaged in his duties should be hit by a trolley car, while on the public street, and injured, the employer of the driver would be liable for compensation, although no liability would attach to the employer under any of the old employers' liability acts or the common law. The various classes of decisions referred to in the foregoing general statement have been collated in the subsequent portion of this Article. The opinions of the Solicitor for the Department of Commerce and Labor, dealing with the Federal Workmen's Compensation Act were published in a volume printed at the Government Printing Office in 1912. These opinions are cited in the subsequent pages of this work under the following abbreviation: "Op. Sol. Dep. C. & L." 2. Going to and from place of employment. 1 The rule under the common law, employers' liability acts and workmen's compensation statutes seems to be that, usually, an employer is not liable for injuries to an employé before he reaches or after he departs from the employer's premises, unless the employé is riding on a conveyance furnished by the employer, and which conveyance is supplied 1 See succeeding subdivisions: SEAMEN AND MECHANICS GETTING ON AND OFF VESSELS, and WORKMEN ON EMPLOYER'S PREMISES BEFORE WORK BEGINS AND AFTER WORK CEASES. |