which lightning would strike would be determined entirely by the location of the charged clouds and the characteristics of the atmosphere intervening between the clouds and the earth. In general, the lightning would start from the lowest point on the charged cloud, and would follow the path of least resistance through the atmosphere to the earth. Where the earth is not uniform, due to either variable contour, or the existence of buildings, trees, poles, or other projections from the surface, or due to regions of good conductivity, caused by moisture, as compared with regions of poor conductivity, caused by dry sand or rock, the course of the lightning to the earth will be somewhat modified by these irregularities. This follows from the fact that the lightning always tends to take the path of least resistance.

"In all ordinary cases, however, the location and configuration of the storm clouds, and the more or less variable conductivity of the atmosphere, are by all means the predominating factors in determining where the lightning will strike, and all ordinary, natural, or artificial projections from the earth's surface are of comparatively small importance."

We may assume for present purposes that a lightning rod properly adjusted to a building furnishes some protection against damage from lightning; but, so far as our research has gone, there appears to be no difference of opinion among the authorities that the lightning rod is not employed because it attracts the lightning. From the articles in the standard encyclopedias and from the work of Sir Oliver Lodge, entitled "Lightning Conductors and Lightning Guards," we deduce the following: The lightning rod projecting above the building which it is intended to protect may be the object upon which the atmospheric breakdown occurs, and, being a good conductor of electricity, it will ordinarily conduct the discharge safely into the ground and relieve the building itself from danger. When electricity passes through a poor conductor, it generates intense heat. If there is no lightning rod attached to a building, and the breakdown occurs at some projecting portion of the building, the heat generated by the passage of the electricity through the building, a poor conducter, may, and usually does, cause damage. The atmospheric breakdown occurs at the weakest point-the place of maximum tension. If there are numerous projecting objects, such as lightning rods, trees, etc., the brushes and glows become so numerous that the tension may be relieved and the entire discharge dissipated without violence or damage, and primarily this is the purpose which the lightning rod is to subserve. But if the charged cloud descends too quickly or has too great a store of energy, the crash occurs notwithsanding the projecting points, and the service of the lightning rod is then employed to conduct the discharge into the ground. Because projecting objects may occasion the atmospheric breakdown, trees, tall buildings, and other projecting objects are more likely to be struck by lightning than other less prominent objects, and it is

upon this theory, we think, that compensation for injury from lightning was allowed in State vs. Ramsey County Dist. Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344, and in Andrew vs. Failsworth Industrial Soc., 2 K. B. 32, and denied in Klawinski vs. Lake Shore, etc., R. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342, in Honig vs. Industrial Com., 159 Wis. 646, N. W. 996, L. R. A. 1916A, 339, and in Kelly vs. Kerry County Council, 42 Ir. L. T. 23. The decisions are harmonious. The difference in the facts alone accounts for the contrary results.

The most diligent research on our part has failed to disclose any authority which supports the theory upon which this case was decided by the court below; on the contrary, so far as they point to any conclusion respecting the subject, the authorities indicate quite clearly that the presence of the metal grader could not have. had any perceptible influence upon the lightning, and did not tend to increase the natural hazard of the deceased's employment. For this reason it cannot be said from this record that his death resulted from an accident arising out of his employment, as the term is used in our Workmen's Compensation Act.

The judgment is reversed, and the cause is remanded to the district court, with directions to enter judgment for the defendant board.

Reversed and remanded.

Sanner, J., concurs. Brantley, C. J., being absent, takes no part in the foregoing decision.

SUPREME COURT OF NEBRASKA.

FEDA

VS.

CUDAHY PACKING CO. (No. 20392.)*

WORKMEN'S COMPENSATION-"ACCIDENT ARISING OUT OF AND IN THE COURSE OF HIS EMPLOYMENT."

Under the facts set forth in the opinion, held, that the plaintiff's deceased did not come to his death by "accident arising out of and in the course of his employment."

Appeal from District Court, Douglas County; Day, Judge.

Action under the Workmen's Compensation Act by Mike Feda against the Cudahy Packing Company. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.

C. W. Sears, of Omaha, for Appellant.
Weaver & Giller, of Omaha, for Appellee.

* Decision rendered, Jan. 21, 1918. 166 N. W. Rep. 190. Syllabus by the Court.

LETTON, J.

Action under Workmen's Compensation Law (Rev. St. 1913, §§ 3642-3696). John Feda was employed by the defendant as a truck

er.

His duties were to take trucks loaded with meat from the fourth floor of the packing house to the trimmer's bench on the fifth floor, using an elevator between the floors. The trucks were there unloaded, and it was Feda's duty to return to the lower floor with the empty truck, where a loaded truck would be ready for him to take up.

On the day of the accident the elevator man, Verbeck, and Feda were playing with each other on the elevator, and Feda had taken hold of Verbeck between the legs. When Feda took the truck off at the fifth floor and set it at the bench, Verbeck chased him and took hold of him in the same manner. He ran back to the elevator with Feda immediately in pursuit. The elevator bell rang, and Verbeck ran upon and started it downward. Feda also ran upon it, but, finding it was going down, he turned and tried to jump back upon the fifth floor, when the top of the descending elevator caught him, inflicting fatal injuries. His father seeks compensation as a defendant. The court entered judgment against the defendant and it appeals upon the grounds: First, that the death was not caused by an accident arising out of and in the course of the employment of Feda; second, that the injury was the direct result of defendant's willful negligence in attempting to leave the moving elevator; and, third, that the court erred in finding that the plaintiff was partially dependent upon deceased at the time of his death.

Did the accident arise "out of and in the course of employment?" Rev. St. 1913, § 3650. It was no part of Feda's duties to return to the elevator without the truck or to run after Verbeck, and he abandoned his work in order to do so. It is argued that, though this may be conceded, the moment that Feda turned and attempted to get out of the elevator he became engaged in the course of his employment, and, the accident happening at this time, brought the case within the statute. If Feda had been attending to his regular duties, he would not have entered the elevator without the truck in the manner and at the time he did, and it would have been unnecessary for him to return. He ran upon it carelessly and attempted to leave it in a reckless and careless manner. The undisputed testimony shows that playing and scuffling in working hours was strictly forbidden, and that, if seen by the foreman, men engaged in it were discharged.

The right of recovery in such a case is purely statutory, and unless the plaintiff has brought the case within the statute, he cannot succeed. The case is distinguishable from those where the person injured was the innocent victim of horseplay by another workman, since Feda was the original aggressor. The vital facts in the case are not in controversy, and it seems clear to us that there can be no liability, since the accident did not arise out of

and in the course of the employment. Pierce vs. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970. See, also, L. R. A. 1916A, p. 47, note 93, and p. 240, note 17a.

"Willful" negligence is defined in the statute as "such conduct as evidences reckless indifference to safety." Rev. St. 1913, § 3693, subd. "d." The elevator had descended a distance variously estimated at from two to four feet, and was still moving before the deceased tried to leave it by jumping or climbing out upon the floor which it had left. Under section 3668, Rev. St. 1913, relating to willful negligence, the right to recover may be seriously doubted, even if the accident had arisen out of or in the course of the employment, but in the view we have taken of the other proposition it is unnecessary to so decide.

The judgment of the district court is reversed, and the action dismissed.

Under Workmen's Compensation Act April 4, 1911 (P. L. p. 134), as amended by Act April 1, 1913 (P. L. p. 302), providing that, where a third person is liable to the employee for an injury. the existence of a right of compensation from the employer thereunder shall not bar the action of the employee, an employee's right of compensation from his employer did not prevent the bringing of an action against the foreman whose negligence caused the injury, as the words "third person" have their usual meaning and include any person other than the employer or employee.

Appeal from Supreme Court.

Action by Edwin J. Churchill against William B. Stephens. From a judgment for plaintiff, defendant appeals. Affirmed.

Horace Allen and J. Raymond Tiffany, both of Hoboken, for Appellant.

John D. Pierson, of Hoboken, for Appellee.

SWAYZE, J.

The plaintiff was employed in the shop of Tietje & Lange Dry Dock Company. The defendant was foreman or superintendent * Decision rendered, Nov. 19, 1917. 102 Atl. Rep. 657.

of the shop. There was uncontradicted evidence from which a jury might infer that, if the plaintiff did not do what the defendant told him, he would be discharged. The accident happened while the plaintiff was assisting about a rudder. He had come to this work from his own particular job at the request of one Thompson and in accordance with the custom of the shop; Stephens was absent at the time. The rudder was held by "strong arms" called V strong arms. These had been adjusted by Stephens, whose duty it was to select and fix the "rigging," as the strong arms are also called. While plaintiff was assisting about the rudder, it slipped, and he was injured. There was evidence that the Vshaped strong arms were dangerous and that T-arms should have been used. We think there was evidence of negligence, and that, if the old rule of assumption of risk is now applicable under the Workmen's Compensation Act to a case like this, that question also was for the jury.

[1] The argument that Stephens is not liable because his act was one of nonfeasance only for which he was responsible to his employer alone is disposed of by what we said in O'Brien vs. Traynor. 69 N. J. Law, 239, 55 Atl. 307, approving Osborne vs. Morgan, 130 Mass. 102, 39 Am. Rep. 437; Id., 137 Mas. 1.

[2] The suggestion that the Workmen's Compensation Act deprives the plaintiff of his right of action is unavailing in the face of the Amendment of 1913 (P. L. 312) which enacts that the existence of a right of compensation from the employer under the statute shall not operate as a bar to the action of the employee. It is said that the defendant is not a "third person," within the meaning of the act. We see no reason for attributing to the words "third person" any other meaning than the usual one. It must mean, as indeed the subsequent language of the section makes perfectly plain, a person other than the employer or employee.

[3] The suggestion that the verdict was contrary to the evidence is idle and ought not to be made in this court, which in an appeal from a judgment in a court of law can review only errors of law, and not a verdict.

The judgment is affirmed, with costs.