Held, that the accident did not occur in the course of his employment.* Arising "Out of" the Employment.-A workman receives injuries by accident "arising out of" his employment when the accident was due to the nature of the work, or was incidental to it. As where a man undertakes to do something and the required exertion which produces the injury is too great for him, whatever the degree of exertion or the condition of his health. A workman may meet with an accident through want of prudence and caution in doing his ordinary work, or through disobedience to rules, and recover compensation therefor. But if he meets with an accident through doing imprudently or disobediently something different in kind from anything which he was required or expected to do, and put out of the range of his service by an express prohibition, such accident does not arise out of his employment. A workman in a coal mine got into one of a train of tubs in order to get to the part of the mine where he was employed. While in the tub he met with an accident which caused his death. Upon application being made by his father for compensation, it was shown that the workmen were expressly forbidden to ride in the tubs, and while they often did so surreptitiously, they never did if of the officials of the mine were presany ent. It was held that there was no evidence that the accident arose out of the deceased's employment." A young lady was employed as ladies' maid and sewing maid. She was sitting in the nursery room on a warm evening with young woman threw up her hand to keep it from striking her face, and in doing so struck her eye with her hand in such a way as to cause serious and permanent injury. Held, that the accident did not arise out of the employment." A man employed to collect insurance premiums from door to door, slipped on some stairs while pursuing the duties of his employment and was injured. It was held that the accident arose out of his employment.3 It is not enough to entitle an applicant to compensation that the accident would not have happened to the workman if he had not been where he was. The mere fact that a man's employment places him in the position he was in when injured by an acci dent is not sufficient. It must be further shown that the accident arose because of something he was doing in the course of his employment, or because he was exposed by the nature of his employment to some peculiar danger. Unless something like this is shown the applicant must fail, because the accident is not one that arose "out of" the employment." Injury Must Be Due to a Risk Incidental to the Employment.-While the word "risk" is not used in the Workmen's Compensation statutes, still the injury must be due to a risk that is incidental to the employment to entitle the workman to compensation. Unless this is true, the accident is not one that arises out of the employ ment. A locomotive engineer was injured while on duty by a stone thrown by a boy from a the window open doing some sewing for bridge, under which the engine was passing herself, which she was allowed to do. A beetle flew into the room and the (4) Pope v. Hills Plymouth Co., 102 L. T. Rep. 632, 3 Butterworth's W. C. Cas. 339, affirmed in 105 L. T. Rep. 678, 5 Butterworth's W. C. Cas. 175. (5) Clover, etc.. Co. v. Hughes, 102 L. T. Rep. 340, 26 T. L. Rep. 359, (1910), A. C. 242, 79 L. J. K. B. 470, 3 Butterworth's W. C. Cas. 275. (6) Barnes v. Nunnery Colliery Co., 105 L. T. Rep. 961, (1912) A. C. 44, 28 T. L. Rep. 135, 81 L. J. K. B. 213, 56 Sol. Jour. 159, 5 Butterworth's W. C. Cas. 195. at the time. It was held that the accident arose out of and in the course of his employment,10 (7) Craske v. Wigan, 101 L. T. Rep. 6, 25 T. L. Rep. 632, (1909) 2 K. B. 635, 78 L. J. K. B. 994, 2 Butterworth's W. C. Cas. 35. (8) Refuge Assurance Co. v. Millar, 49 Sc. L. Rep. 67, 5 Butterworth's W. C. Cas. 522. (9) Amys v. Barton, 105 L. T. Rep. 619, 28 T. L. Rep. 29, (1912) 1 K. B. 40, 81 L. J. K. B. 65, 5 Butterworth's W. C. Cas. 117. (10) Challis v. London, etc., R. Co., 93 L. T Rep. 330, 21 T. L. Rep. 486, 53 Wkly, Rep. 613. 7 W. C. Cas. 23. The language of the Master of the Rolls (Collins) in rendering opinion in this case makes very plain this point. He said: "I do not think that we should be justified, in deciding a case of this kind, in taking leave of our common sense or of our common knowledge, and I think we must approach this case from the standpoint that we know that a train in motion is an object of attraction for boys, and that it is a very usual incident of passing trains that boys throw stones at them. It seems to me that we cannot ignore that fact when we consider what are the risks incident to the employment of an engine-driver. It seems to me that one of the risks in the employment of an engine-driver is that he or his train may be the object of attraction for missiles. coming from boys or others." A ship's carpenter was working on the poop of his vessel, which was lying in harbor. Someone near lit a cigarette and carelessly threw the match in some shavings which the carpenter had made. The shavings were ignited, and this ignited the carpenter's trousers, which were saturated with inflammable oil which had leaked from a barrel he had shifted in the course of his work. Held, that the injury was by accident arising out of and in the course of the employment.11 The carpenter's trousers were saturated with oil owing to the work he was doing; he was surrounded by shavings owing to his work; therefore, it was a result of his work that he was, at the moment, working in a position in which he was in more than ordinarily inflammable surroundings. Something occurred by which the inflammable substances were set on fire and the carpenter burned. Thus, it will be seen that the injury was due to a risk incidental to the employment at which the carpenter was engaged.12 In Bryan v. Fissell it was said by the Supreme Court of New Jersey: "A risk is incidental to the employment when it be (11) Manson v. Forth & Clyde Steamship Co.. (1913) Sc. Sess. Cas. 921. (12) N. J. Sup Ct., March 24, 1913, 86 Atl. 458. longs to or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the em ployment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment." In the case last cited it appeared that a workman was killed while employed on a building in the process of construction by a bar of metal caused to fall from a floor above by an employe of an independent contractor employed on the same building. It was held that the risk was one incidental to the employment. An injury caused by lightning is one that ordinarily cannot be said to be due to a risk incidental to the average man's employment. However, if, by reason of the peculiar position in which a man is required. to work, he is more than ordinarily exposed to such danger, the risk arising there from may be said to be incidental to his employment. A workman employed in the construction of a building was struck by lightning when working at a height of twentythree feet. The evidence showed that a man working in that position incurs a risk substantially greater than the normal risk of being struck by lightning. It was held that the accident arose out of the employment.13 Risks to Which All Persons Are Alike Exposed. If a workman is injured or killed by something to which he is no more exposed by reason of his employment than members of the public generally, no recovery can be had therefor. His injury or death was not due to an accident that arose out of the employment; the risk was the employment did not bring upon him any greater risk of being struck by lightning than is incurred by the public generally. 14 A man employed as school janitor was conveying a mesage on school business one hot day when he became giddy and faint from the heat, and fell, striking his head and sustaining injuries from which he died. Held, that the accident did not arise out of his employment.15 However, if the workman's employment exposes him more to certain risks than the average inhabitant, even though they are the ordinary risks of a city street, they are incidental to the employment. A man employed as a salesman and collector made use of a bicycle in his work. While in the course of his duties and while riding his hicycle, he was kicked by a horse. The accident was held to have arisen out of the employment.16 When "Employment" Commences and Ends.-"Employment," as used in the Workmen's Compensation statutes, is not synonymous with work. It extends to all things which the workman is entitled by the contract of employment expressly or impliedly to do. Thus, a workman is entitled to pass to and from the premises and, as a rule, to take his meals on the premises. But he is not employed, to do things which are unreasonable or things which are expressly forbidden.17 A workman was employed by contractors in widening a siding for a railroad company. His day's work commenced at seven o'clock, a. m. There were two ways of reaching the place of employment; one by way of what was known as the Waterloo Gate, which led along the main line, and (14) Kelly v. Kerry County Council, 42 Ir. L. T. 23, 1 Butterworth's W. C. Cas. 194. (15) Rodger v. Paisley School Board, (1912) Sc. Sess. Cas. 584, 49 Sc. L. Rep. 413, 5 Butterworth's W. C. Cas. 547. (16) McNeice v. Singer Sewing Mach. Co (1911) Sc. Sess. Cas. 12. 48 Sc. L. Rep. 15, 4 Butterworth's W. C. Cas. 351. (17) Brice v. Lloyd, 101 L. T. Rep. 472, (1909) 2 K. B. 804, 25 T. L. Rep. 759, 53 Sol. Jour. 744. 2 Butterworth's W. C. Cas. 26. this way the workmen had been instructed to use, and the other way by the Maes Glas Gate, which led across the main line. One foggy morning shortly before seven o'clock the workman was killed on the main line. It was held that the accident did not arise out of and in the course of the employment.18 Here the workman was where his | employment did not require him to go, and where there was no reasonable excuse for going if he had obeyed instructions. Employment does not commence the moment the workman leaves home on his way to work, nor does it continue until he has reached home after the day's work is done. Nor does it continue while the workman steps aside, that is, leaves his work, for purposes of his own. Thus, a railway engineer on his way to work earlier than was necessary, went out of his course for purposes of his own to talk to a signalman. In order for him to reach the man it was necessary to cross some railroad tracks, but on a direct route from his home to the engine shed where he signed on for work every morning there were no tracks to cross. When he had finished speaking to the signalman he started back across the tracks and was struck and killed by an engine. It was held that the accident was not one arising out of and in the course of the employment.1 Collins, M. R., stated in his opinion in this case: "He had got to go to his place of employment, and he was not in that employment until he got to it. It seems to me that a person who is in an employment carries with him during the period, whether in the day or night or whatever time it may be, that he is bound to work, all the privileges that are conferred by this act; but when he has left that employment in the evening or at any other hour, from that time until he arrives next morning at the place where his field of employment is, he is in the same position as any other member of the pub (18) Holmes v. Mackey, 80 L. T. Rep. 881, (1899) 2 Q. B. 319, 15 T. L. Rep. 351, 68 L. J. Q. B. 724, 1 W. C. Cas. 13. (19) Benson v. Lancashire, etc., R. Co., 89 L. T. Rep. 715, (1904) 1 K. B. 242, 20 T. L. Rep. 139, 73 L. J. K. B. 122, 6 W. C. Cas. 20. em taining precisely when a workman's ployment begins. Each case must be decided on its individual facts. Generally speaking, the factory gate or yard, or the like, indicates the boundary, but in particular instances there may be a wider margin in favor of the workman. A company allowed their employes to use a short cut over land belonging to them on their way to and from work. There was no contract requiring the employes to furnish this means of access to their works, and there was no obiigation on the part of the employes to use it. A workman fell, about three-quarters of a mile from the his way to work and was injured. Held, that the accident did not arise out of and in the course of his employment.21 lic. He carries with him into his period of leisure no insurance from his employers." On the other hand, a workman's employment may commence a considerable period of time before he actually engages at his work, and it does not necessarily cease the moment he leaves off work. It was the custom of a number of workmen, who came to work by train and who arrived about five or ten minutes after six, a. m., to deposit their time tickets on the ledge of a pigeonhole at an office on the works, then go to a mess cabin, which the employers had erected on the premises, where they had tea prepared by the mess man, and then waited till half-past six, at which time they were sum-cmployers' works, while using this path on moned to work. The workmen were required to deposit their time tickets by three minutes after half-past six. The employers cr their representatives knew of this prac- A collier, in order to reach his work, lad tice of the workmen. A workman who had to pass through an iron gate on the embeen employed about five weeks was going ployer's premises one hundred yards from as usual to leave his time tickets when a the lamp room, the place where he would board he had stepped on slipped and he fell first go. In passing through, the gate sudinto a hole and was injured. Held, to be denly closed and caught and injured him. an injury caused by accident arising out of It was held that he was injured by an acand in the course of the employment.20 Incident arising out of and in the course of this case it was declared that there is a reasonable margin to be allowed to the workman to get on to the premises and to get to the place where he is to do his work, and if, during that time, he is doing something which is for the benefit of the employer as well as for himself, he is engaged in his employment. The Master of the Rolls (Collins) stated further: "The workman, for the convenience of himself and the master, had got himself into the employment before the time at which under ordinary circumstances he need have done. Owing to the train, he had to arrive at the place of employment before the commencement of the work, and this was known to the employers, and they had provided this refreshment place." Injury Occurring While Going to Work. -There is considerable difficulty in ascer (20) Sharp v. Johnson & Co., 92 L. T. Rep. 675. (1905) 2 K. B. 139, 21 T. L. Rep. 482, 74 L. J. K. B. 566, 7 W. C. Cas. 28. his employment.22 It was contended in this case that as the gate was more than one hundred yards from the lamp room, it was outside the reasonable margin of space within which the workman going to his employment was entitled to protection of the Compensation statute. This contention, however, was of no avail. While proceeding above ground to his work, a miner slipped and broke his leg on the employers' premises several feet from the doorway of a horizontal entrance, at which place he intended to enter the mine. Held that the accident arose out of and in the course of his employment.23 Injuries received while leaving workThe same theories of the law are involved (21) Walters v. Stavely Coal, etc., Co., 105 L T. Rep. 119, 4 Butterworth's W. C. Cas. 303. (22) Hoskins v. Lancaster, 26 T. L. Rep. 612, 3 Butterworth's W. C. Cas. 476. (23) Mackenzie v. Coltness Iron Co., 6 Se i Sess. Cas. (5th series) 8, 41 Sc. L. Rep. 6. in this and the question just discussed. It will suffice, therefore, to give a few illustrations. On leaving the mine after his work was done, a miner, instead of taking the recognized road provided by the employers, proceeded by way of a steep and very rough path. This path was not formed in any way, but was worn into uneven steps, and while it was occasionally used by men who were in a hurry, there was no evidence that the employers knew of this, and its use was neither sanctioned nor forbidden. In walking down this path the miner fell and received fatal injuries. It was held that the accident did not arise out of and in the course of the employment.24 In this case the Lord President said: "I think that where there is a perfectly proper and recognized road out of the premises it is impossible to say that a man is in the course of his employment if he neglects that road and goes by some other means of exit, which in point of fact is really no road at all." A workman was employed to assist in unloading a vessel, which was lying in harbor. When that work was done he put on the hatches and prepared to go home. He crossed on a plank belonging to the vessel and one end of which rested on a fixed ladder, which was a part of the quay. He proceeded a few steps on this ladder, when he slipped and was injured. Held, that the accident did not arise out of and in the course of the employment, as the ladder was a part of the quay and outside the sphere of the workman's employment.25 A man was employed as riveter on board a ship in dock. He started to go ashore for his breakfast, but found that the vessel was being removed to a dry dock; the gangway having been removed and the ship already a short distance from the quay. The only means of reaching shore was by way of a (24) Hendry v. United Colleries, (1910) Sc. Sess. Cas. 709, 47 Sc. L. Rep. 635, 3 Butterworth's W. C. Cas. 567. (25) Webber v. Wansbrough Paper Co., 29 T. L. Rep. 704. rope, which still held the vessel to the quay. A fellow workman had gotten safely to shore by this means, and he attempted to do so. In the attempt the rope gave way and he was thrown against the quay and was injured. The County Court Judge (trial judge) found that going to and leaving the ship was a part of the workman's employment; that in acting the way he did he thought the risk was small; that in the absence of the gangway, the man had acted reasonably in taking the risk, and consequently the accident arose out of and in the course of the employment. On appeal this finding was upheld.20 Injury occurring during cessation of work-The fact that an accident happens at a time when there is a temporary cessation of work does not prevent its being one arising out of and in the course of the employment. The employment continues during all the time from the employe's arrival on the premises until his departure, provided he is engaged in the employment or something ancillary thereto.27 Minor employes occupying a platform where they were sent to rest during an intermission in the performance of their duties, were held to continue as employes in the service of the employer during such time.28 A workman employed on the premises near the employer's factory, went to the factory, with the permission of his foreman, about four o'clock of a cold morning, to warm. Held, that he was engaged in the line of his duty while there.29 Injury occurring during noon hour-It has been held that the relation of master and servant continues to exist during the servants' noon hour, where it is understood that the servant will remain on the master's premises to eat his meal. The cases (26) Keyser v. Burdick & Co., 4 Butterworth's W. C. Cas. 87. (27) Blovelt v. Sawyer. 89 L. T. Rep. 658. (1904) 1 K. B. 271, 20 T. L. Rep. 105, 6 W. C. Cas. 16. (28) Chambers V. Woodbury Mfg. Co., 106 Md. 496, 68 Atl. 290, 14 L. R. A. (N. S.) 383. (29) Parkinson Sugar Co. v. Riley, 50 Kan. 401, 31 Pac. 1090, 34 Am. St. Rep. 123. |