juries were received by the workman, not in performing his ordinary work, but where he was acting in an emergency. See cases cited in notes 20 et seq. on p. 56, ante. In Gonyea v. Canadian P. R. Co. (1913) 7 B. W. C. C. (Sask.) 1041, the supreme court of Saskatchewan held that an injury to a workman employed by a railroad company arose out of his employment where he was injured while on the defendant's premises by their permission, for the purpose of procuring some of his personal belongings, which had been brought by one of the employer's trains from his last place of work. This decision, although turning solely upon the fact that the workman was acting with the permission of his employer, supports RE BRIGHTMAN in that compensation was allowed, although the injury was MICHIGAN SUPREME COURT. WILLIAM MCCOY V. received while the workman was engaged solely in looking after his own personal belongings. The effect of the decision in Whitfield v. Lambert (1915) 112 L. T. N. S. (Eng.) 803, [1915] W. C. & Ins. Rep. 48, 8 B. W. C. C. 91, seems to be to the contrary. Here a workman employed by a farmer was injured while using the farmer's horse and cart to fetch his box from the station, and it was held that he was not entitled to compensation, although it was a term of the contract of employment that he was to have a horse and cart for that purpose. Swinfen Eady, L. J., said: "Applicant was merely using the respondent's horse and cart with leave and license, as it was agreed that he was at liberty to do. He was going on his own business, and not on the farmer's business." W. M. G. 5 C. C. A. 390, 14 U. S. App. 346, 55 Fed. 1021; Haile v. Texas & P. R. Co. 23 L.R.A. 774, 9 C. C. A. 134, 23 U. S. App. 80, 60 Fed. 557; Chesapeake & O. R. Co. v. Heath, MICHIGAN SCREW COMPANY, Plff. in 103 Va. 64, 48 S. E. 508; Louisville & N. R. Certiorari. Co. v. Scalf, 33 Ky. L. Rep. 721, 26 L.R.A. (N.S.) 263, 110 S. W. 862; Ruegg, Workmen's Compensation, 323, 340; Commercial Travelers' Mut. Acci. Asso. v. Fulton, 24 C. C. A. 654, 45 U. S. App. 578, 79 Fed. 423; Hubbard v. Travelers' Ins. Co. 98 Fed. 932; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 122, 155 Fed. 54; Illinois Commercial Men's Asso. v. Parks, 103 C. C. A. 286, 179 Fed. 794; Binder v. National Masonic Acci. Asso. 127 Iowa, 25, 102 N. W. 190; White v. Standard Life & Acci. Ins. Co. 95 Minn. 77, 103 N. W. 735, 884, 5 Ann. Cas. 83; Maryland Casualty Co. v. Glass, 29 Tex. Civ. App. 159, 67 S. W. 1062; Streeter v. Western Union Mut. Life & Acci. Soc. 65 Mich. 199, 8 Am. St. Rep. 882, 31 N. W. 779; Scheffer v. Washington City, V. M. & G. S. R. Co. 105 U. S. 249, 26 L. ed. 1070; Dunham v. Clare, 4 W. C. C. 102 [1902] 2 K. B. 293, 71 L. J. K. B. N. S. 683, 66 J. P. 612, 50 Week. Rep. 596, 86 L. T. N. S. 751, 18 Times L. R. 645; Ystradowen Colliery K. B. N. S. 1044, 100 L. T. N. S. 869, 25. Co. v. Griffiths [1909] 2 K. B. 533, 78 L. J. Times L. R. 622; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30, 15 N. W. 65; McCarmel v. Howell, 36 Ill. App. 68; Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 24 U. S. App. 176, 63 Fed. 942; Lalone v. United States, 164 U. S. 255, 41 L. ed. 425, 17 Sup. Ct. Rep. 74; Baltimore City Pass. R. Co. v. Kemp, 61 Md. 619, 48 Am. Rep. 134, 3 Am. Neg. Cas. 667; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 49, Am. Rep. 168, 3 Am. Neg. Cas. 148; Travel-, caused an irritation and caused him to rub ers' Ins. Co. v. Melick, 27 L.R.A. 629, 12 his eye. ! At the time, claimant was being C. C. A. 544, 27 U. S. App. 547, 65 Fed. | treated by Dr. A. M. Campbell for gonor178; Craske v. Wigan [1909] 2 K. B. 635, | rhea. On February 7th he went to Dr. from the eye. The next day the doctor removed another piece of steel and discovered that the eye had become infected with gonorrhea. He was then sent to a hospital and subsequently lost the sight of the eye. The Industrial Accident Board affirmed an award made claimant by an arbitration committee of $6.49 per week for 100 weeks. 78 L. J. K. B. N. S. 994, 101 L. T. N. S. | Cochrane, who removed four pieces of steel 6, 25 Times L. R. 632, 53 Sol. Jo. 560, 2 B. W. C. C. 35; Wolsey v. Pethick Bros. 1 B. W. C. C. 411; Boyd, Workmen's Compensation, § 559; Mitchell v. Glamorgan Coal Co. 23 Times L. R. 588; Gibley v. Great Western R. Co. 3 B. W. C. C. 135, 102 L. T. N. S. 202; Barnabas v. Bersham Colliery Co. 3 B. W. C. C. 216, 102 L. T. N. S. 621; White v. Sheepwash, 3 B. W. C. C. 382; Charles v. Walker, 2 B. W. C. C. 5, 25 Times L. R. 609. It is the claim of contestant and appellant that the loss of the eye was not the result of a personal injury arising out of and Messrs. Person, Shields, & Silsbee, for in the course of claimant's employment, but defendant in certiorari: Claimant was entitled to the compensa tion awarded by the arbitration committee. Baldwin, Personal Injuries, § 167; Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 409, 41 N. W. 490; Shumway v. Walworth & N. Mfg. Co. 98 Mich. 415, 57 N. W. 251, 15 Am. Neg. Cas. 10; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568; Schwingschlegal v. Monroe, 113 Mich. 685, 72 N. W. 7; Reed v. Detroit, 108 Mich. 224, 65 N. W. 967; Zibbell v. Grand Rapids, 129 Mich. 659, 89 N. W. 563; Hall v. Cadillac, 114 Mich. 99, 72 N. W. 33; Rawlings v. Clyde Plank & Macadamized Road Co. 158 Mich. 143, 122 N. W. 504; Beauerle v. Michigan C. R. Co. 152 Mich. 345, 116 N. W. 424; 1 Thomp. Neg. § 149; Young v. Accident Ins. Co. Montreal L. Rep. 6 S. C. 3; Hatchell v. Kimbrough, 49 N. C. (4 Jones, L.) 163; Louisville, N. A. & C. R. Co. v. Wood, 113 Ind. 544, 14 N. E. 572, 16 N. E. 197, 3 Am. Neg. Cas. 197; Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74, 3 Am. | Neg. Cas. 655; Stewart v. Ripon, 38 Wis. 584; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908; Dickson v. Hollister, 123 Pa. 421, 10 Am. St. Rep. 533, 16 Atl. 484; Houston & T. C. R. Co. v. Leslie, 57 Tex. 83, 6 Am. Neg. Cas. 492; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30, 15 N. W. 65; Louisville & N. R. Co. v. Northington, 91 Tenn. 56, 16 L.R.A. 268, 17 S. W. 880; Dunham v. Clare, 4 W. C. C. 102 [1902] 2 K. B. 293, 71 L. J. K. B. N. S. 683, 66 J. P. 612, was the direct result of a disease unconnected in any way with his employment. At the hearing before the Industrial Accident Board, four physicians were sworn, who testified as to the effect upon the eye of gonorrheal infection. Claimant contends that the germs would not have entered the eye had not the steel caused "(a) an inclination to rub-the inciting cause; (b) inflamed condition which made the eye susceptible to the entry of the germs, as in the case of blood poison and erysipelas." A careful reading of the testimony of the physicians shows that the infection can easily be caused to a normal eye by rubbing the eye with a hand infected with the gonorrheal germ. Dr. Bret Nottingham testified: Mr. Mason: And will you say as an expert how gonorrhea can be communicated to the eye? Is it by germ or otherwise? A. Yes; it is a contagious disease, of course, produced by this germ, and a person, in caring for themselves as they have to, get some of this pus on their finger containing the germs, and of course, the eye being irritable, would rub the eye with the finger containing this pus. Mr. Mason: No doubt that infection of the eye was caused by the entering of gonorrhea germs. Could that infection occur if there was no injury in the eye? A. Yes. Mr. Mason: Therefore, if a perfectly nor50 Week. Rep. 596, 86 L. T. N. S. 751, 18 mal eye will be rubbed by a hand infected with the germ, it will infect the eye. A. It might be very easily infected; a Times L. R. 645. Kuhn, J., delivered the opinion of the normal eye can be infected in this same court: manner. Mr. Mason: Suppose this boy had not had any injury to his eye, and had rubbed his eye; would it be possible that he could have lost his eye? The claimant, William McCoy, was employed by the contestant and appellant as an operator on a lathe machine. On February 1, 1913, several small pieces of steel from the machine on which he was working lodged in his eye. This, it is claimed, | obtained. A. Yes; the same result might have been "Gonorrhea is Mr. Mason: He had gonorrhea before that? A. I understand so. Mr. Mason: At the time you examined him did he have gonorrhea? A. I understand so. Mr. Reaves: You say, Doctor, that that was the approximate cause of the loss of his eye-the immediate cause; what would you say if he had not have had the steel in his eye? A. If he had not had the steel in his eye, he might not have rubbed his eye, at least not as vigorously as he did, and so he might not have infected the eye. Dr. Cushman testified: one of the most common conditions that there is, perhaps, and it is an admitted fact, without any argument upon what we are supposed to know, that the gonorrhea germ will attack and penetrate the unaffected covering of the eye. I have heard it said on reasonably good authority that it is perhaps the only germ that will attack an uninjured eye; but the fact of there having been this injury to the eye from the steel, without any question, in my mind, has lowered the resistance of the eye, that is, weakened it, and made it less resistant to the infection. With the inflammation, it was much more probable that the eye become affected. Now, if the infection of gonorrhea Mr. Atkins: How much more chance was easier transmitted to the eye, there would there be for his losing his eye after would be probably about 50 per cent of us having the piece of steel in there, and the running around blind. That is, the gonor-inflammation with it-how much more rhea is common, and you don't see many chance would there be to lose the eye? blind. I have heard that 90 per cent of the men in a certain town either have or have had gonorrhea, and 90 per cent of the men haven't got bad eyes, and probably have been careless about their fingers. The presence of an injury to the eye makes it far more probable that the eye will become diseased." Dr. Cochrane testified: Mr. Mason: Dr. Cochrane, did you examine this William McCoy; on what date? A. February 7th. Dr. Campbell testified: A. Just as soon as the infection gets in there I don't think it would make a great deal of difference. to lose the eye as soon as your infection gets You are just as liable there, whether you had anything in there or not. The point is here, your steel would be an inciting cause, and get infection on that account; but, once you get the infection, you are liable to lose the eye one way or the other. The point is here, there is an inciting cause from rubbing the eye; the effect of the steel being there, a man would Mr. Mason: He came to you for what be more liable to get infection of the eye, trouble? A. He complained of steel in his eye. Mr. Mason: Did you take the foreign bodies? A. Yes. Mr. Mason: Where were they in the eye? A. On the upper lid on the under side. Mr. Mason: Were they in a place where they would have been apt to give very serious injury to the eye? A. Not serious injury; they would produce irritation. Mr. Mason: Does the present loss of the eye result from these cinders having been in or from another cause? A. The direct cause is from the gonorrhea infection. Mr. Mason: Therefore the loss of the eye is the direct result of disease, and not of accident. A. The immediate cause is the disease. but, once your infection is in there, you will lose the eye from the gonorrhea infection. It does not make any difference how it gets in there, you will lose the sight partially or complete. The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose "out of and in the course of his employment" rests upon the claimant. Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; Ruegg on Workmen's Compensation, p. 343, says: "If an inference favorable to the applicant can only be arrived at by a guess, the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them." Boyd on Workmen's Compensation, § 559, says: "The workman carries the burden of proving that his injury was caused by the accident, and, where he fails to do so, and where the evidence as to the cause of the in Mr. Mason: In other words, what we call jury is equally consistent with an accident, the resulting cause is the disease. A. The immediate or direct cause. Mr. Mason: How did that gonorrhea get into his eye? and with no accident, compensation may not be awarded him." In the instant case it is not reasonable to say that he would not have rubbed his eye A. Probably from rubbing with his fin- if the steel had not lodged there. He might gers. not have rubbed his eye, it is true; but it is just as reasonable to suppose that he might have had occasion to rub his eye without this particular inciting cause. By the medical testimony it conclusively appears that the infection could have taken place if the steel had not been there. It must be said, from this record, that the loss of the eye was directly and immediately due to the in fection caused by the gonorrhea, which it cannot be claimed is a risk incident to the employment. We are of the opinion that the facts are not capable of supporting the inference that the injury arose out of and in the course of the employment. The decision of the Industrial Accident Board is reversed, with costs to appellant. Annotation-Recovery of compensation for loss of eye through infection. As to application and effect of workmen's compensation acts generally, see annotation, ante, 23. Compensation is recoverable only for injuries or incapacity "arising out of and in the course of" the employment; consequently, if the injury to an eye is the result of an infection from a source not in any way connected with the employment, compensation is properly denied. McCoy v. MICHIGAN SCREW Co. is a good example of this character of cases. The injury to the eye was comparatively slight, and the resulting incapacity would also undoubtedly have been slight but for the fact that germs of a disease from which the workman was suffering at the time of the injury were carried to the eye by the workman's hand. The English case of Bellamy v. Humphries [1913] W. C. & Ins. Rep. (Eng.) 169, 6 B. W. C. C. 53, is to the same effect. Here it was held that where a microbe from some source not connected with the employment enters the eye and sets up inflammation, the arbitrator is justified in holding that the employers are not liable for compensation for the resulting incapacity, although the workman had previously gotten harmless dust into his eye, and by rubbing it had caused an abrasion, rendering the action of the microbe more serious. bing it with an infected cloth, or washing it in infected water, or in other ways." The court called especial attention to the fact that the workman was not working on the waste pipe or any pipe which takes water away from the wash bowl, but on the cock which supplied clean water to the bowl. The court, however, went on to say: "If the Commission had found as a fact that the infection came from the substance that dropped in the eye, it might be difficult to say that there was no evidence to support the finding; but they did not so find; on the contrary, they reached the conclusion which seems to us eminently reasonable and logical that it might have come from this source, and might also have come from a number of outside sources.' If the injury to the eye, however, is the direct result of foreign particles which get into the eye while the workman is engaged in his regular duties, then such loss or injury may be said to be an accident for which compensation is recoverable, although the injury may have been aggravated by the workman rubbing his eye. Thus, a workman suffered injury by accident where bran dust containing grit got into his eyes, and by rubbing them an abrasion was caused which necessitated the removal of one eye, and affected the sight of the other eye. Adams v. Thompson (1911) 5 B. W. C. C. (Eng.) 19. An award of compensation was set aside in Voelz v. Industrial Commission (1915) Wis. —, 152 N. W. 830, where a plumber, while lying on his back, at work on the hot water cock of a wash It has been held by the House of basin in a private residence, was struck Lords, sustaining the court of appeal, in the eye by a "something" which caused that a workman whose eye becomes inacute pain and impelled him to rub his fected with anthrax while engaged in eye, which became inflamed, and gon- handling wool suffers an accident within orrheal infection followed, resulting in the meaning of the compensation_act the loss of the sight of the eye. It was Brintons v. Turvey [1905] A. C. (Eng.) satisfactorily shown that the workman 230, 74 L. J. K. B. N. S. 475, 53 Week. was not suffering from any gonorrheal Rep. 641, 92 L. T. N. S. 578, 21 Times infection at the time of the injury, but L. R. 244, 2 Ann. Cas. 137, affirming the award was set aside as being based on [1904] 1 K. B. (Eng.) 328, 73 L. J. K. B. mere conjecture or surmise, since the N. S. 158, 68 J. P. 193, 52 Week. Rep. Commission said in their finding that the 195, 89 L. T. N. S. 660, 20 Times L. R. substance which fell in the eye might 129. This decision was handed down behave been infected, or "with the eye in- fore the act was extended to embrace inflamed it might become infected by rub-dustrial diseases, and from the language used by the judges delivering judgment | bacillus of anthrax was something so it appears to be a very extreme case, tangible that the impact of such a baciland might be cited as a precedent for lus with a portion of the human body awarding compensation in any case of could be compared with the impact of the contracting of an industrial disease. some material object, such as sand or a It would seem that the decision could particle of steel. This decision is disonly be explained upon the theory that cussed at length in the annotation, ante, the learned judges believed that the 37. W. M. G. WISCONSIN SUPREME COURT. CITY OF MILWAUKEE, Appt., V. reach his place of employment at 8 o'clock. He reported, according to custom, on the morning of May 3, 1912, and, after receiving instructions as to where he was to MINNIE ALTHOFF, by Guardian et al., work, proceeded toward the place. While Respts. (156 Wis. 68, 145 N. W. 238.) on his way he fell on a sidewalk and injured his knee. He died on September 21, 1912, and it was found on sufficient evidence that his death was due to the injury which he received when he fell. Messrs. Daniel W. Hoan and William H. Timlin, Jr., for appellant: Master and servant - workmen's compensation act injury while proceeding to place of employment. An injury to a city employee who, after reporting according to custom for instruction as to where he is to work during the A party is not entitled to compensation day, falls on the sidewalk while on his way under the compensation act when he is intoward such place, grows out of and is injured, not in working, but in walking along cidental to his employment within the meaning of a workmen's compensation act, although it occurs before the hours when his regular duties for the day begin. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. Statement by Barnes, J.: The appeal is from a judgment affirming an award of $2,138.11, made in favor of Minnie Althoff by the Industrial Commission under the workmen's compensation act, against the city of Milwaukee, on account of the death of William A. Althoff, the father of said Minnie Althoff. The deceased was employed by the city at an agreed compensation of $2 per day. His hours of labor were fixed at eight hours a day by an ordinance of the city, and he began work at 8 o'clock in the morning and finished at 5 in the afternoon. He was required to report to his foreman at 7:30 o'clock each morning to receive instructions as to where he was to work during the day, so that he might Note. As to application and effect of workmen's compensation acts generally, see annotation, ante, 23. As to recovery of compensation for in juries while going to and from work, see annotation, post, 331. the street, going to a place at which he is to do some work, the injury being caused by an alleged defect. Morrison v. Eau Claire, 115 Wis. 538, 95 Am. St. Rep. 955, 92 N. W. 280. When an employee reports at 7:30 A. M., for the purpose of ascertaining where he shall work that day, and his work does not he reaches his work,-such employee is commence until 8 o'clock, no matter when not, when going to such place of work, and walking upon the streets, injured by reason of an accident arising out of and incidental to his employment. 26 Cyc. 969; Walters v. Stavele Coal & I. Co. 105 L. T. N. S. 54, 55 Sol. Jo. 579, 4 B. W. C. C. 303; Anderson v. Fife Coal Co. R. 430, 4 B. W. C. C. 379; Whitehead v. |