Whether or not the injury was caused by "accident" is generally considered to be a question of fact; and the findings of the Commission or trial court will not be disturbed if there is some evidence to support such finding.62 But it has been said that the question whether or not the injury to the employee is an accident within the purview of 2 of the New Jersey act is a mixed question of law and fact; when applied to a certain state of facts, it is a question of law.63 XXXIII. Injuries "arising out of and in the course of" the employment. from the English workmen's compensation act.64 The terms "out of" and "in the course of" are not synonymous, 65 and if either of these elements is missing, there can be no recovery. 66 The two questions are to be determined by different tests.67 The words "out of" refer to the origin or cause of the accident, and the words "in the course of" to the time, place, and circumstances under which it occurred.68 So it has been said that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises "out of and in the course of the employment." 69 For the English decisions construing It has been said that under the New this phrase, see ante, 40. Jersey act an accident which is the rePractically all of the American stat-sult of a risk reasonably incident to utes provide compensation in case of the employment is an accident arising "injury" or "injury by accident" "aris- out of the employment,70 and that the ing out of and in the course of the em- injuries for which compensation is to ployment." This phrase is borrowed be paid under the Wisconsin act are such day thereafter, death from surgical opera- v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, tion for relief thereof, and the opinion of 3 N. C. C. A. 585. the operating surgeon that the rupture was caused by the lifting, is sufficient to establish accidental injury in the course of employment within the meaning of the West Virginia act. Poccardi v. Public Service Commission (1915) W. Va., post, 299, 84 S. E. 242. The Industrial Commission is justified in indulging the presumption that a workman whose body was found in a river did not commit suicide. Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998. Where, by an agreement between an employer and an employee, it was stated that the injury to the employee's right eye was caused by molten iron being splashed into it, causing a bad burn, the employer is estopped from subsequently claiming that the defect in the eye at the time of the order approving the agreement was the result of senile cataract. Spooner v. Beckwith (1914) 183 Mich. 323, 149 N. W. 971. 62 The findings by the Industrial Accident Board, upon a petition to review, will not be reversed unless the petitioners have conclusively shown by their evidence that the injury to the employee's eye was caused by senile cataract, and not by traumatism. (Mich.) Ibid. 63 Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585. 64 The language of the New Jersey act of 1911 with reference to the recovery of compensation where an employee is injured by accident arising out of and in the course of his employment is identical with the language of the British workman's compensation act of 1906, and therefore cases in that jurisdiction, construing the language in that act, will be useful in construing the same language in the New Jersey act Bryant 65 "An injury may be received in the course of the employment and still have no causal connection with it, so that it can be said to arise out of the employment." State ex rel. Duluth Brewing & Malting Co. v. District Ct. (1915) 129 Minn. 176, 151 N. W. 912. 66 McNicol's Case (1913) 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; Bryant v. Fissell (N. J.) supra. 67 Hopkins v. Michigan Sugar Co. (1915) Mich. -, post, 310, 150 N. W. 325. 68 Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409; Hopkins v. Michigan Sugar Co. (Mich.) supra. 69 Scott v. Payne Bros. (1914) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. C. A. 682. An accident arises "in the course of the employment" if it occurs while the employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed, and at a place where he may reasonably be during that time; and it arises "out of" the employment when it is something the risk of which may have been contemplated by a reasonable person when entering the employment as incidental thereto. Bryant v. Fissell (N. J.) supra. "It is sufficient to say that an injury is received 'in the course of' the employment, when it comes while the workman is doing 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 causal connection between the conditions under which the work is required to be performed and the resulting injury." McNicol's Case (Mass.) supra. N. J. as are incident to and grow out of the employment.71 A risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.72 If a locomotive engineer who slipped while standing on an apron of metal between the engine and the tender, fell because the apron was smooth and unsteady, then his fall is clearly the result of a hazard incident to his employment, and is an industrial accident for which indemnity may be recovered under the provisions of the workmen's compensation act.73 The accidental drowning of an employee, 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 New Hampshire act.74 Whether or not the injury is one "arising out of and in the course of the employment" within the meaning of the 71 Hoenig v. Industrial Commission (1915) 159 Wis. 646, post, 339, 150 N. W. 996, 8 N. C. C. A. 192. 72 Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585. 73 Milwaukee Coke & Gas Co. v. Industrial Commission (1915) 160 Wis. 247, 151 N. W. 245. 74 Boody v. K. & C. Mfg. Co. (1914) 77 N. H. 208, ante, 10, 90 Atl. 860, Ann. Cas. 1914D, 1280. 75 The fact that, before the passage of the workmen's compensation act, an employee in a shop could not recover from her employers for injury received while on a stairway in the building, which was not controlled by her employers, is not controlling in proceedings brought under the compensation act, since one of the very purposes of the act was to increase the right of employees to be compensated for injuries growing out of their employment. Sundine's Case (1914) 218 Mass. 1, post, 318, 105 N. E. 433, 5 N. C. C. A. 616. 76 A petitioner who, with two others, was pulling on a hand chain connected with a block operating a mechanism which caused a lifting chain to pass through the block and lift a steel girder, and who was injured by the lift chain becoming blocked and splitting the block, was injured by accident arising out of and in the course of the employment, although the injury was caused by the disobedience of fellow workmen in continuing to pull on the chain after they had been directed by the foreman to stop. Scott v. Payne Bros. (1914) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. C. A. 682. 77 The New Jersey act nowhere provides specifically or by implication that an em | That the injury was caused by the negligence of a fellow servant is not a defense to proceedings for the recovery of compensation; consequently it has been held that the disobedience by a fellow workman of orders is as much one of the risks of a man's employment as a defect in the mechanical appliances.76 So, too, compensation is recoverable although the injuries were caused by the negligence of third persons.77 In order that an injury or accident should "arise out of and in the course of" the employment, it is not necessary that it should be one reasonably to be anticipated as an incident of the employment.78 Risks to which all persons, whether in the employment or not, are subject, cannot be said to be incidental to the employment. Thus, injuries caused by slipping on the street while going from one place to another are not within the protection of a statute.79 In one case it has been held that comployee shall be deprived of his right to compensation thereunder, merely because the accident gives rise to a right of recovery against the third person. Bryant v. Fissell (N. J.) supra. 78 Under the compensation act it is of no significance whether the prescribed physical harm was natural and probable, or the abnormal or inconceivable consequence of the employment, the only inquiry is whether in truth it did arise out of and in the course of that employment. If death ensues, it is immaterial whether it was the reasonable and likely consequence or not. The only question is whether in fact death "results from the injury." Sponatski's Case (1915) 220 Mass. 526, post, 333, 108 N. E. 466, 8 N. C. C. A. 1025. 79 An employee of a sugar company, whose duty required him to inspect plants in different places, is not, after his return from a tour of inspection to his own city, within his employment when injured by slipping upon the ice while running to get a street car to return to his home, so as to render his employers liable to compensation, since the danger of slipping upon the street is not a hazard incidental to the employment of those who are called upon to make journeys between towns on business missions. Hopkins v. Michigan Sugar Co. (1915) Mich. -, post, 310, 150 N. W. 325. In Milwaukee v. Althoff (1914) 156 Wis. 68, post, 327, 145 N. W. 238, 4 N. C. C. A. 110, compensation was allowed for the death of an employee caused by injuries received while going from the place where he received orders to the place where he was to work, which injuries were caused by his falling on the street and injuring pensation is recoverable where the duty | an injury which arose out of and in which the employee was performing was the course of the employment.82 But if owed by him to others as well as to his the injury for which compensation is master.80 It is the work which the sought was caused by his mental conworkman is doing at the time of his dition which was not in any way the injury that determines whether or not result of his employment, then no comhis injury arises out of and in the course pensation is recoverable, although the of the employment, and not what he is injury arose in the course of the employabout to do after the completion of the ment.83 task in hand.81 Injuries self-inflicted or otherwise, suffered by an employee because of a derangement of his mind, arise "out of and in the course of his employment" where his mental aberration is caused by his knee. From the language used by the court, however, it is apparent that the court decided that such injuries were received "in the course of" the employment, and it does not appear that the court determined the further question whether they arose "out of" the employment. An injury to a motorman who had closed his day's work and had signed his name to the register denoting that fact, and who was injured while on the public street on his way to have his watch tested, by being run down by an automobile not under the control of the employer, does not arise out of and in the course of his employment. De Voe v. New York State R. Co. (1915) App. Div. —, 155 N. Y. Supp. 12. There can be no compensation for the death of a workman, caused by falling on a pail of broken glass while he was walking along the street, delivering meat from his employer's shop, although his usual occupation was a hazardous one within the meaning of the New York statute. Newman v. Newman (1915) App. Div. 155, N. Y. Supp. 665. But a truck driver's helper, who, in order to drive away some boys who were hanging on the rear of a truck, jumped off the truck, and, in doing so, fell to the pavement, fracturing his skull, suffered injury by accident arising out of and in the course of his employment. Hendricks v. Seeman (1915) App. Div. 155 N. Y. Supp. 638. 80 Injuries caused by being drenched with water and saturated with smoke, received by an employee in charge of his employer's volunteer fire brigade while assisting in extinguishing a fire in a garage, situated but 40 feet distant from his employer's premises, may be found to "arise out of" the employment, where the workman entered the burning garage with the employer's chemical engine before the arrival of the town apparatus, although he subsequently worked in connection with the fire apparatus of the town. Re McPhee (1915) Mass. 109 N. E. 633. The court said: "While the deceased was a member of the town fire department, and as such required to attend the fire, it well might be that his paramount duty was owed to the subscriber to protect its property from destruction by An employee is not entitled to compensation for the loss of an eye although several pieces of steel lodged in it while he was at work at a lathe, where the loss of the eye was immediately caused by rubbing the eye with fire and to prevent thereby a panic among its patrons and the disaster which might ensue. It does not seem to us possible to say as matter of law that when he had exhausted the chemical of the subscriber and begun working in connection with the fire apparatus of the town, he ceased acting primarily in the interests of his employer, who was the subscriber, and began working exclusively for the town." 81 A workman employed to drive a horse and a cart is not outside of his employment while driving the horse to a watering trough, as it was his duty to do, although, after the horse had been watered, he intended to use it for his own purposes. Pigeon's Case (1913) 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. The court said: "Though he may have had at the same time the purpose to do something else not within the scope of his employment, after watering the horse, that fact does not prevent the service actually rendered at the moment from being in the course of his employment. His custody of the horse for the purpose of relieving his thirst was in the performance of the business of his general employer. His service in doing this was not destroyed by his unexecuted intention to abandon his master's business after performing this duty and to take the horse for his own convenience on a journey of his own." 82 Compensation is recoverable under the workmen's compensation act for death of a workman by throwing himself from a window as a result of injuries arising out of and in the course of his employment which deranged his mind so as to create an irresistible impulse to commit the act which caused his death. Sponatski's Case (1915) 220 Mass. 526, post, 333, 108 N. E. 466, 8 N. C. C. A. 1025. 83 Pneumonia, contracted by an employee who, because of prior injury, suffered a loss of memory while in charge of his master's team, and, in attempting to get the horses to the stable, wandered from the wagon into a swamp, and suffered exposure during the night, is not an injury "arising out of" his employment within the meaning of the act. Milliken's Case (1914) 216 Mass. 293, post, 337, 103 N. E. 898, 4 N. C. C. A. 512. his hand infected with an infectious disease from which he was suffering at the time of the injury.84 As a general rule, accidents which befall an employee while going to or from his work are not to be regarded as in the course of or arising out of his employment.85 But undoubtedly such accident might be brought within the scope of the employment by the terms of the contract of employment.86 It has been held that where an employee is injured while traveling to or from his work in a vehicle provided by the employer, the latter's liability depends upon whether the conveyance has been provided by him after the real beginning of the employment, in compliance with one of | 84 McCoy v. Michigan Screw Co. (1914) 180 Mich. 454, post, 323, 147 N. W. 572, 5 N. C. C. A. 455. In connection with this case, see Voelz v. Industrial Commission (1915) Wis. 152 N. W. 830, cited in note 22, infra. 85 Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409. the implied or express terms of the contract of the employment, for the mere use of the employee, and is one which the employees are required, or, as a matter of right, are permitted, to use by virtue of that contract.97 It is not necessary, however, that the hour of work shall have arrived and that the work shall have been actually begun.88 On the one hand it has been held that it is not a sufficient test that the workman should be on the premises of the employer,89 while, on the other hand, the circumstance that the deceased employee was not upon the estate of his employer at the time of receiving his injury has been said to be of slight significance.90 An employee in a shop clean out catch basins at a place about 2 miles distance from his home, and was injured while riding home on a wagon furnished by the employer, he is entitled to compensation where, with the knowledge and consent of the employer, the workman, together with other employees, was accustomed to ride to and from the vicinity of the catch basin in a wagon furnished by the employer, the wagon meeting the employees on the street, and the employer being notified if any of the employees failed to re and the wagon was at the service of the employees at the end of the day, and they might ride back in it to the employer's barn if they wished. Donovan's Case (1914) 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, 4 N. C. C. A. 549. 86 An injury incurred by a workman in the course of his travel to his place of work, and not on the premises of the employer, does not give right to participation in the compensation fund, unless the place of in-port for work at the beginning of the day, jury was brought in the scope of employment by an express or implied requirement in the contract of employment of its use by the servant in going to and returning from his work. De Constantin v. Public Service Commission (1914) — W. Va., post, 329, 83 S. E. 88. In denying compensation, the court said: "If it had been shown that the decedent, approaching his place of work by the only means of access thereto, was almost within the reach of it at the time of his injury, some of the authorities relied upon might justify the allowance of the claim; for the employment is not limited to the exact moment of arrival at the place of actual work, nor to the moment of retirement therefrom. It includes a reasonable amount of time before and after actual work.... But, on the contrary, if the employee at the time of the injury has gone beyond the premises of the employer, or has not reached them, and has chosen his own place or mode of travel, the injury does not arise out of his employment, nor is it in the scope thereof." Where an employee was killed on returning home at the close of a day's work, upon a railroad track, where he was struck by a train, the employer is not liable for compensation, where the contract of employment did not provide for transportation or that he should be paid for the time taken in going and returning to his place of employment, and it appeared that when the day's work had ended the employee was free to do as he pleased. Fumiciello's Case (1914) 219 Mass. 488, 107 N. E. 349. 87 Where a workman was employed to 88 In applying the general rule that the period of going to and returning from work is not covered by the act, it is to be remembered that employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when it ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409. An injury to a city employee, who, after reporting according to custom for instructions as to where he is to work during the day, falls on the sidewalk while on his way toward such place, grows out of and is incidental to his employment within the meaning of the Wisconsin act, although the accident occurs before the hours when his regular duties for the day begin. Milwaukee v. Althoff (1914) 156 Wis. 68, post, 327, 145 N. W. 238, 4 N. C. C. A. 110. 89 Hills v. Blair (Mich.) supra. 90 Injuries caused by inhaling smoke and by being drenched with water may be found to have been received "in the course of" the employment of a workman who was employed as a superintendent of an amusement park, and was in charge of his employer's volunteer fire brigade, and was also a member of the town fire department, and received the injuries while assisting to ex An employee sent to repair water mains between the tracks of a railroad is not outside of his employment in going to a hand car ten steps away to put | on rubber boots, where that was the only place except the ground that he could sit on in order to put on boots and he had been told to bring the boots with him, and he could perform his work better when wearing 'them.91a 92 1993 may recover for injuries received on a | actively employed at the time of the stairway, although her employer did not injury.9 Thus, a workman exposed to have control of the stairway, which was severe weather, and injured while wormunder the control of the owner of the ing himself, may be found to have been building.91 injured by accident "arising out of and in the course of his employment." So, an injury may be found to "arise out of and in course of" the employment of a workman, where it is received while he is seeking shelter from a storm and at a place away from the immediate scene of his place of work.94 (But see the "lightning cases" cited in notes 18-20, infra.) And injuries received while necessarily crossing a street to seek toilet facilities arise "out of and in the course of the employment." 95 So an employee in a factory is still in the employ of the to run into him while he was warming himself." That an injury should arise "out of and in the course of the employment," it is not necessary that the employee be tinguish a fire in a garage, situated but 40 | feet distant from his employer's premises, although, after the employer's chemical engine gave out, he began working in connection with the fire apparatus of the town department. Re McPhee (1915) Mass. -, 109 N. E. 633. The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed. Milwaukee v. Althoff (Wis.) supra. 91 An injury to one employed by the week, while leaving the premises for the purpose of procuring a luncheon, by means of stairs which are not under the employer's control, but afford the only means of going to and from the workroom, arises out of and in the course of the employment. Sundine's Case (1914) 218 Mass. 1, post, 318, 105 N. E. 433, 5 N. C. C. A. 616. 91a Brown v. Decatur (1914) 188 Ill. App. 147. 92 Employment within the meaning of the statute refers rather to the contract than to the labor done in pursuance of the contract, and an employee does not cease to be an employee because of certain instants of time he is not actually engaged in work. Scott v. Payne Bros. (1914) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. C. A. 682. 93 An employee engaged in dumping hot iron briquettes from cars running unattended from the mills into the yards, whose duty involved periods of leisure during which he apparently was expected to kill time as best he might, with no specific direction as to what he should do or where he should wait, does not go out of his employment when, upon a cold night he put off dumping the car until he could warm himself from its heated contents. Northwestern Iron Co. v. Industrial Commission (1915) 160 Wis. 633, 152 N. W. 416. The court said: "To protect himself from undue and unnecessary exposures to the cold was a duty he owed his master as well as. himself, and it does not follow that he left his master's employment because he negligently allowed a second car 94 A lineman who seeks shelter from the storm under some cars on a switch, and is injured by the cars being moved by an engine on another railroad, is injured by accident arising out of his employment, where the employer furnished no shelter, but left each man to find shelter as he could in the storm, and made no deduction of wages for the interference in the work. Moore v. Lehigh Valley R. Co. (1915) 169 App. Div. 177, 154 N. Y. Supp. 620. 95 Where the employer failed to provide proper toilet facilities for employees in the building where they were at work, so that they were obliged to and did habitually resort for such facilities during the working hours to another building of the employer which lay across a public street, and which custom persisted for a considerable time, and as the court was entitled to find, was therefore known and consented to by the employer, a workman while crossing the street in working hours to reach the toilet in question, who was struck by a passing vehicle, sustaining injuries which caused his death, may be found to come to his death by accident which arose out of and in the course of his employment. Zabriskie v. Erie R. Co. (1914) 86 N. J. L. 266, post, 315, 92 Atl. 385, affirming judgment of the Supreme Court, 85 N. J. L. 157, 88 Atl. 824, 4 N. C. C. A. 778. The supreme court pointed out that this was the only toilet provided by the defendant, and that it was the practice of the operatives in the shop where the deceased was at work, presumptively with the knowledge and consent of the defendant, to temporarily leave their employment when the necessity arose, and to make use of the toilet in question. The court concluded its argument as follows: "Therefore we must conclude that it was within the contemplation of both parties to the employment that such an exigency was an incident which ex necessitate inhered in the terms of the contract, and for the damages arising out of which the defendant must respond within the contemplation of the statute." |