seems, that the necessity for services of aercise of the police power to legislate for nurse should be certified to by the attending physician or surgeon, as a prerequisite to its allowance either as an incident to the medical or surgical treatment or greater allowance for disability indemnity. What has been said, sufficiently for the case, disposes of the claim for services of a nurse; but another reason is advanced why the allowance should not have been made here under the circumstance that the service was voluntarily performed by a relative of Miller, who resided in the house with him, without promise or expectation of compensation. The fact that she was a minor makes no difference. Whatever she did was done substantially in the presence of her mother, and, evidently, with the latter's sanction. As the mother was a nearer relative of Miller than the niece who performed the service, if the question of whether the attention is compensable as a legal liability be referable to the attitude of the former, the inference is all the stronger that the same was intended to be gratuitous. The Commission probably applied the rule in negligence cases that he who is liable for damages for a tortious injury cannot mitigate the amount of the recovery by taking advantage of the gratuitous services or loving care of family or friends. Hulehan v. Green Bay, W. & St. P. R. Co. 68 Wis. 520, 32 N. W. 529; Crouse v. Chicago & N. W. R. Co. 102 Wis. 196, 205, 78 N. W. 446, 778; Johnson v. St. Paul & W. Coal Co. 131 Wis. 627, 111 S. W. 722. the public welfare. It is not a charity, but the recognition of a moral duty and the erection of it into a legal obligation of the public, not of the mere employer, to compensate reasonably those who are injured while in the employment of others, as a part of the natural, necessary cost of production; that obligation being discharged through the agency of the employer. Thus the reason of the old rule applicable to wrongs does not furnish any sound basis for allowing compensation for the services of a nurse under the circumstances of this case. The beneficence of the law in recognizing moral duty goes no further than its specifications, read in the spirit of the enactment. That does not go to the extent of mulcting, indirectly, consumers to compensate for services gratuitously performed in taking care of injured persons. It is confined to the reasonable expense incurred by or on behalf of the employer in providing the specific elements of relief mentioned in subdivision 1, § 2394-9 of the statute; giving to the words "reasonable expense incurred" their fair meaning, in the light of the system the legislature created. "Reasonable expense incurred" should be viewed from the standpoint of the injured person. where reasonably necessary, being, by law, the agent of the employer to act in their mutual interests in incurring the expense,— the possessor, so to speak, of a power in trust and in duty bound to act fairly for both parties. The more clearly it is appreciated that the basic logic of the law is mutuality of interest between employers. employees, and the public, and that each actor is charged with the duty of promoting the mutual interests, the more apparent the high ideal the legislature had in mind in creating the new system, and the greater the prospect of such ideal being realized. Nothing short of reasonable expenditure of money, or incurring of legal liability to ex The line of cases referred to and the rule deducible therefrom is very familiar; but it is by no means clear that they apply to the circumstances before us. The rule is grounded, not on a statutory liability, but the common-law principle that he who tortiously injures another in his person or his property incurs a legal liability to make good to that other all the loss which is directly and naturally caused thereby, regard less of any element of reasonable anticipa-pend money for the purposes contemplated tion of consequences. This extreme and rather harsh rule is characterized by a penal element, grounded on the moral turpitude of the wrongful act. Under the statutory system for dealing with personal-injury losses incident to performance of the duties of an employer, they are regarded as mutual misfortunes, to be charged up, as directly as practicable, to the cost of production. The right to have the employer regarded as an agency to make payment to the employee and absorb the same as an expense of the industry, regardless of whether the loss is attributable to any human fault, is a legislative creation within the constitutional ex- part. in the act, can be held to satisfy the legis lative conception of "reasonable expense incurred," as the words were used in the act. The services of a nurse in this case obviously do not fall within such meaning. The result of the foregoing is that the judgment appealed from must be modified by deducting the charges for nurse and for medical and surgical treatment, leaving the sum of $177.50, and as so modified, be affirmed. So ordered. Siebecker and Timlin, J.J., took no Same injury not in connection with machinery. 2. Liability under workmen's compensation act for injuries received in work in any shop, mill, factory, or other place in connection with, or in proximity to, any machinery propelled or operated by steam or other mechanical power, is not limited to injuries received in proximity to the machinery, but will include injuries by falling from the milldam, where the provision with respect to explosives limits the liability to injuries occasioned by explosion. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. 3. The accidental drowning of an ployee, or his fall onto the rocks in the river bed, while engaged in the duty of clearing débris from the rack protecting the flume which carries the water from the dam to the mill in which he is employed, is within the operation of a statute providing compensation for injuries by accident arising out of or in the course of the employment. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. Same negligence in attempting work. 4. An employee is not negligent as matter of law in going onto a wet and slippery walk to clear the débris from the rack protecting the flume leading water from the dam to the mill in which he is employed, where the work was necessary, and all fairminded men would not agree that the risk of injury was so apparent that the ordinary man would not have encountered it. For other cases, see Master and Servant, II. c, in Dig. 1-52 N. S. ty, made during the trial of an action brought to recover damages for personal injuries for which defendant was alleged to be responsible under the employers' liability and workmen's compensation act, which resulted in a verdict in plaintiff's favor. Overruled. Deceased was required, among other things, to clean the racks constructed to catch rubbish coming down the race to defendant's mill. On the morning of the accident he was seen standing on a walk with his back to the stream, attempting to pull rubbish out of a rack. Later his body was recovered from the river below the mill and a broken rake was found in the flume and a freshly broken rake handle was found in the river. Further facts appear in the opinion. Messrs. Jones, Warren, Wilson, & Manning, for defendant: If the intestate was engaged in work outside the scope of his employment, recovery is barred. Parent v. Nashua Mfg. Co. 70 N. H. 199, 47 Atl. 261. Defendant's negligence is not shown to have caused the injury. Dame v. Laconia Car Co. Works, 71 N. H. 407, 52 Atl. 864, 12 Am. Neg. Rep. 520; Deschenes v. Concord & M. R. Co. 69 N. H. 285, 46 Atl. 467; Reynolds v. Burgess Sulphite Fibre Co. 73 N. H. 126, 59 Atl. 615; Boucher v. Larochelle, 74 N. H. 433, 15 L.R.A. (N.S.) 416, 68 Atl. 870. Messrs. Martin & Howe, for plaintiff: Deceased was a workman within the meaning of the statute, and the evidence warranted the jury in finding that his death was caused by defendant's negligence. Hamel v. Newmarket Mfg. Co. 73 N. H. 386, 62 Atl. 592; Charrier v. Boston & M. R. Co. 75 N. H. 59, 70 Atl. 1078; Cate v. Boston & M. R. Co. 77 N. H. 70, 87 Atl. 255; Boucher v. Larochelle, 74 N. H. 433, 15 L.R.A. (N.S.) 416, 68 Atl. 870; Crawford v. Maine C. R. Co. 76 N. H. 29, 78 Atl. 1078; Lockwood v. American Exp. Co. 76 N. H. 530, 85 Atl. 783; Godsoe v. Dodge Clothespin Co. 75 N. H. 67, 70 Atl. 1073; Bennett v. Concord Woodworking Co. 74 N. H. 400, 68 Atl. 460; Buell v. Berlin Mills Co. 77 N. H. 55, 86 Atl. 256; Bennett v. Warren, 70 N. H. 564, 49 Atl. 105. It was competent for the jury to find that the defendant should "have reasonably anticipated the plaintiff's act." Godsoe v. Dodge Clothespin Co. 75 N. H. 67, 70 Atl. 1073. A "mill" does not mean merely the building in which the business is carried on, but includes the site, dam, and other things annexed to the freehold, necessary for its beneficial enjoyment. 5 Words & Phrases, 4507; Whitney v. Olney, 3 Mason, 280, Fed. Cas. No. 17,595; Leonard v. White, 7 Mass. 6, 5 Am. Dec. 19; Luttrell's Case, 4 Coke, 86a, 10 Eng. Rul. Cas. 294; Wilcoxon v. McGhee, 12 Ill. 381, 54 Am. Dec. 409; Schott v. Harvey, 105 Pa. 222, 51 Am. Rep. 201; Wind River Lumber Co. v. Frankfort Marine Acci. & Plate Glass Ins. Co. 116 C. C. A. 160, 196 Fed. 340; Southern Bell Teleph. & Teleg. Co. v. D'Alemberte, 39 Fla. 25, 21 So. 570; Geloneck v. Dean Steam Pump Co. 165 Mass. 202, 43 N. E. 85. The statute is constitutional. State v. Roberts, 74 N. H. 478, 16 L.R.A. (N.S.) 1115, 69 Atl. 722; State v. Aldrich, 70 N. H. 391, 85 Am. St. Rep. 631, 47 Atl. 602; Cooley, Const. Lim. 6th ed. 479–481; State v. Griffin, 69 N. H. 34, 41 L.R.A. 177, 76 Am. St. Rep. 139, 39 So. 260; Orient Ins. Co. v. Daggs, 172 U. S. 557, 43 L. ed. 552, 19 Sup. Ct. Rep. 281; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 51 54, 56 L. ed. 327, 346, 347, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 55 L. ed. 78, 32 L.R.A. (N.S.) 226, 31 Sup. Ct. Rep 136, Ann. Cas. 1912A, 463, 2 N. C. C. A. 243; Doherty, Liability of Railroads to Interstate Employees, 222; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255. The statutes are drawn with a solicitude to cover every species of property or appliance in respect to which a servant is required to do labor. Thomp. Neg. 2d ed. § 4559; Kelley v. Great Northern R. Co. 152 Fed. 211; Louisville & N. R. Co. v. Melton, 218 U. S. 36, 54 L. ed. 921, 47 L.R.A. (N.S.) 84, 30 Sup. Ct. Rep. 676; Merritt v. American Woolen Co. 71 N. H. 493, 53 Atl. 303; English v. Amidon, 72 N. H. 301, 56 Atl. 548, 15 Am. Neg. Rep. 391; Hamel v. Newmarket Mfg. Co. 73 N. H. 386, 62 Atl. 592; Cate v. Boston & M. R. Co. 77 N. H. 70, 87 Atl. 255; Charrier v. Boston & M. R. Co. 75 N. H. 59, 70 Atl. 1078; Bennett v. Warren, 70 N. H. 564, 49 Atl. 105; Godsoe v. Dodge Clothespin Co. 75 N. H. 67, 70 Atl. 1073; Young v. American Exp. Co. 76 N. H. 582, 86 Atl. 138; Zabriskie v. Erie R. Co. 85 N. J. L. 157, 88 Atl. 824, 4 N. C. C. A. 778; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; Muzik v. Erie R. Co. 85 N. J. L. 129, 89 Atl. 248, 4 N. C. C. A. 732; Nicholson v. Transylvania R. Co. 138 N. C. 516, 51 S. E. 40; Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, post, 366, 142 N. W. 271, Ann. Cas. 1915B, 847; 2 Labatt, Mast. & S. §§ 639, 663. When there is evidence that the accident was caused by the defendant's negligence, there may be a recovery. Boucher v. Larochelle, 74 N. H. 433, 16 L.R.A. (N.S.) 416, 68 Atl. 870; Lockwood v. American Exp. Co. 76 N. H. 530, 85 Atl. 783; Godsoe v. Dodge Clothespin Co. 75 N. H. 67, 70 Atl. 1073; Bennett v. Concord Woodworking Co. 74 N. H. 400, 68 Atl. 460; Cate v. Boston & M. R. Co. 77 N. H. 70, 87 Atl. 255; Buell v. Berlin Mills Co. 77 N. H. 55, 86 Atl. 256. Young, J., delivered the opinion of the court: By the enactment of chapter 163, Laws of 1911, the legislature intended to change the common law so that one who is injured by accident while engaged in work in which the risks are great and difficult to avoid may be compensated, in part, at least, for the loss thereby sustained, if the accident is one arising out of and in the course of the employment, regardless of the cause of his injury. Section 2. It sems to have been understood, however, that this change could not be made without the assent of all those affected by it. It was necessary, therefore, from that view point, to secure the assent of those affected by the act as well as to provide for compensation to the injured. It is the office of § 1 to define those who come within the operation of the act, and of §§ 2, 3, and 4 to induce them to accept its provisions. The means devised to induce such acceptance by employers were: (1) To provide that, if an employee is injured by accident arising out of and in the course of the employment, caused in whole or in part by the negligence of his employers or of their servants or agents, the employers shall be liable to the employee for all the loss he sustains, and he "shall not be held to have assumed the risk" of his injury; but there shall "be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed" (§ 2); and then (2) to relieve employers who accept the act in accordance with the provisions of § 3 from the burdens imposed on them in § 2. In other words, the means the legislature devised to induce employers to accept the provisions of the act was to take from those who do not accept it about the only real defense to an action by a servant which is open to his employer at common law. Since the defendants have not complied with the provisions of § 3, the question of law raised by their first exception is whether it can be found: (1) That the intestate was engaged in one of the employments described in § 1; (2) that he was injured by accident arising out of and in the course, of those employments is not entitled to re of the employment; (3) that their fault contributed to cause his injury; and (4) that he was free from fault. men who are endangered" by the dangerous agencies described in the act, "while in the scope of their employment." Is this contention sound? lief unless his injury results from the particular risk which induced the legislature to include those engaged in these employments 1. One of the employments described in within the operation of the act. To be more § 1 is "work in any shop, mill, factory or specific: They say that a person who is inother place on, in connection with, or in jured while at "work in any shop, mill, proximity to any hoisting apparatus, or factory, or other place" is not entitled to any machinery propelled or operated by the benefits of the act, notwithstanding he steam or other mechanical power, in which is injured by accident arising out of and in shop, mill, factory, or other place five or the course of his employment, unless his more persons are engaged in manual or injury is caused either by the negligence of mechanical labor." The word "mill" may a fellow servant, or by one of the risks inbe used as meaning a building in which cident to work "on, in connection with, or manufacturing is carried on. It is, however, in proximity to" power-driven machinery; often used as meaning a manufacturing that is, unless his injury is caused by one establishment, and when used in this sense of the risks which induced the legislature it includes all that is usually intended by to include those engaged in employment (b) the plant of a manufacturing concern; that within the operation of the act. They say is, it includes not only the buildings in that "not every employee in a given busiwhich the work is done, but every appurten-ness or establishment covered by the act is ant to them. The description of an accident within its protection but only those workthat will entitle an employee to the benefits of the act as one caused by any defect in the employer's "plant" (§ 2) tends to the conclusion that that is the sense in which the word "mill" is used in § 1, and so does the context, for "employment" (b) is described as "work in any shop, mill, factory, or other place," not other building, as it probably would be if the words "mill, shop, and factory" were used in that sense. As there is nothing to rebut this presumption, it must be held that "mill," as used in § 1, includes not only the building in which the defendants' business is carried on, but their dam, flume, yard, and the ways they provide for the use of their employees. 27 Cyc. 511, II B; 20 Am. & Eng. Enc. Law, 674, note, "Common Usage; " Webster, New Int. Dict. "Mill;" 6 Century Dict. "Mill." The intestate, therefore, was engaged in employment (b), and the plain tiff is within the operation of the act unless, as the defendants contend, the employee's injury must be caused by a particular risk peculiar to the employment in which he is engaged in order to bring him within the provisions of the act. It will be necessary, therefore, to consider what the legislature intended when it enacted: "This act shall apply only to workmen engaged in manual or mechanical labor in the employments described in this section." Section 1. The section describes five separate employments, (a), (b), (c), (d), and (e), and there are certain risks peculiar to each which probably induced the legislature to include those exposed to them within the operation of the act, for the dangers incident to these risks are great and difficult to avoid. Since this is so, the defendants say it follows that a person engaged in one 1 It will be helpful, when considering the question, to remember that it is the office of §1 to limit the workmen who come within the operation of the act, and of § 2 to describe an accident that will entitle such workmen to its benefits. In the final analysis, the defendants' contention is that the words "workmen engaged in work in any shop, mill, factory, or other place, on, in connection with, or in proximity to," power-driven machinery, are descriptive of an accident, not an employment, which will bring a workman within the operation of the act, or that those words were intended to limit the accidents that will entitle those engaged in such work to the benefits of the act. The act, however, says that it applies "to workmen engaged in manual or mechanical labor in the employments described in this section," not to those who are injured while engaged in any one of those employments by the particular risk which induced the legislature to include those engaged in it within the operation of the act; and there would be more force in the defendants' contention if it were not for the fact that the description of employment (d), all work necessitating dangerous proximity to steam boilers and explosives, concludes: "Provided injury is occasioned by the explosion of any such boiler or explosive." The fact that the legislature expressed an intention to limit the operation of the act, in so far as persons engaged in the employment are concerned, to those who are injured as a result of the particular risk it had in mind when it described the employment, nega tives an implied intention to limit the operation of the act in the same way in so far as those engaged in the other four employments are concerned. In other words, it is probable that if the legislature had intended to limit the benefits of the act, in so far as these four employments are concerned, to those who are injured by the particular risk that induced it to include them within the operation of the act, it either would have omitted this proviso from the description of (d), or included similar provisos in the descriptions of (a), (b), (c), and (e). The fact that the legislature added this proviso to the description of one and omitted similar provisos from the description of the other employments, when taken in connection with the fact that the declared purpose of § 1 is to limit the workmen to whom the act applies, and of § 2, to describe the accidents which will entitle them to its benefits, makes it certain that those who are injured in an accident described in § 2, while engaged in employments (a), (b), (c), and (e), are entitled to the benefits of the act, both when their injuries are and when they are not caused by the particular risk which induced the legislature to include those engaged in their employments within the operation of the act. In short, there is nothing in the act to show an intention to confine its benefits, in so far as those engaged in employment (b) are concerned, to employees who are injured either by the negligence of a fellow servant or by coming in contact with power-driven machinery. A somewhat similar provision of the English workmen's compensation act of 1897 (60-61 Vict. chap. 37) is construed in the same way. Maude v. Brook [1900] 1 Q. B. 575, 69 L. J. Q. B. N. S. 322, 64 J. P. 181, 48 Week. Rep. 290, 82 L. T. N. S. 39, 16 Times L. R. 164. Any person, therefore, who is engaged in manual or mechanical labor in any shop, mill, factory, or other place, by whatever name known, in which shop, mill, factory, or place power-driven machinery is used and five or more persons are employed, is engaged in employment (b) and is entitled to the benfits of the act if he is injured "by accident arising out of and in the course of the employment." 2. This brings us to the question whether it can be found that the intestate lost his life in such an accident. The words "by accident arising out of and in the course of the employment" are found in many (perhaps in most) employers' liability and workmen's compensation acts. As these acts are construed, any untoward and unexpected event is an accident. Fenton v. Thorley [1903] A. C. 443, 72 L. J. Q. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S 314, 19 Times L. R. 684. That is, "accident" is used in its popular sense. Since this is so, the intestate met his death by accident, unless he jumped into the river to kill himself. It can be found, therefore, that his death was accidental. The next question to be considered is whether the accident was one arising out of and in the course of his employment. The accident arose out of the intestate's employment, within the meaning of all the cases; but, while there is nothing that can be called a consensus of opinion as to what constitutes an accident (Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458; Parker v. Hambrook, 107 L. T. N. S. 249, [1912] W. N. 205, 56 Sol. Jo. 750, 5 B. W. C. C. 608, Ann. Cas. 1913C, 1; Fitzgerald v. Clarke [1908] 2 K. B. 796, 77 L. J. K. B. N. S. 1018, 99 L. T. N. S. 101) most of the cases that have been decided since 1902 would have been decided as they were, if the test that is applied to determine whether an employee was acting within the scope of his employment when he was injured had been applied to determine whether the employee was injured by accident arising in the course of the employment. For a review of the authorities on this question, see an article by Professor Bohlen in 25 Harvard Law Review, 328, and note in Ann. Cas. 1913C, 4-21. Therefore the method which should be employed in this case to determine whether the intestate was injured by accident arising in the course of the employment is to inquire whether it can be found (1) that he was cleaning the rack at the intake when the accident happened; and, if it can be, (2) whether he thought the defendants expected him to clean it that morning. It is true that no one saw the accident, but the intestate was seen at or about the time it happened, and at that time was standing on the walk very near to the river, with his back toward the stream, trying to pull some bushes out of the rack with an ordinary garden rake. As no one saw just what happened, it is fair to ask what would have been likely to happen if the rake handle broke or the bushes gave way suddenly. It is clear that, if either of those things happened, he might lose his balance and strike his head on the rocks in the river. The marks that were found on his body tend to the conclusion that that was just what did happen. It can be found, therefore, from the evidence as to where he was standing about the time the accident happened, his position with reference to the river, and the work he was doing at that time, taken in connection with the evidence as to the rocks in the river and the marks found on his body, either |