55 the natural and probable one is immaterial." This rule has been applied, for example, in determining whether a suicide while insane was the result of the accident which caused insanity.56 Injury proximately caused by accident. Where under the statute the injury must have been proximately caused by the accident, the element of reasonable anticipation as entering into the doctrine of proximate cause as applied to questions of negligence is eliminated, but the injury or disability must be so related to the accident that it is the natural consequence thereof.59 [61] b. Negligence of Physician or Surgeon. Where the chain of causation is not broken, it is not material that the immediate cause of injury or death is due to the mistake or negligence of attending physicians, where they act honestly. Where the statute requires the employer to furnish a physician, the employer is liable for any aggravation of the injury caused by the negligence of the physician [e] Facts held not to show.-(1) That death was due to accidental fall from hay cart. Brown v. Kidman, 4 BWCC 199. (2) That death was due to fall from van. Honor v. Painter, 4 BWCC 188. (3) That strangulation of hernia was due to exertion. Perry v. Ocean Coal Co., 5 BWCC 421. Cause of incapacity see infra § 82. 55. In re Sponatski, 220 Mass. 526, 531, 108 NE 466, LRA1916A 333; Milwaukee V. Industrial Commn., 160 Wis. 238, 151 NW 247; Dunham v. Clare, [1902] 2 K. B. 292, 4 WCC 102. "If the connection between the injury as the cause and the death as the effect is proven, then the dependents are entitled to recover even though such а result before that time may never have been heard of and might have seemed impossible. The inquiry relates solely to the chain of causation between the injury and the death." In re Sponatski, supra. [a] Reason for rule.-"Proximate cause as applied to negligence law has, by definition, included within it the element of reasonable anticipation. Such element is a characteristic of negligence, not of physical causation. As long as it was necessary to a recovery to have a negligent act stand as the cause of an injury, it did no harm to characterize causation in part at least in terms of negligence. But when, as under the Compensation Act, no act of negligence is required in order to recover, the element of negligence, namely, reasonable anticipation, contained in the term 'proximate cause,' must be eliminated therefrom; and the phrase 'where the injury is prox-, imately caused by accident,' used in the statute, must be held to mean caused in a physical sense, by a chain of causation which both as to time, place, and effect is so closely related to the accident that the injury can be said to be proximately caused thereby. To incorporate into the phrase 'proximately caused by accident' all the conceptions of proximate cause in the law of negligence would be to lug in at one door what the legislature industriously put out at another. Proximate cause, under the law of negligence, always has to be traced back to the conduct of a responsible human agency; under the Compensation Act the words 'proximately caused by accident' in terms relate to a physical fact only, namely, an accident. Hence if the injury or death can be traced by physical causation not too remote in time or place to the accident, then such injury or death was proximately caused by the accident, irrespective of any element of reasonable anticipation. The term ' proximately' was no doubt used to exclude physical causes SO remote in time or place, or both, as to make 60 treating the employee during the time fixed by the statute.1 A contrary view is, however, taken by other authorities which hold that the workman's compensation cannot be increased by the fact that, through the incompetent or negligent handling of the case by physicians, his disability has been increased;62 and this, although the circumstances are such as to charge the employer with responsibility for the fault of the physicians.63 64 [§ 62] C. Refusal or Neglect to Submit to Surgical or Medical Treatment. By express provision of some of the acts compensation will not be paid for disability so far as it is caused, continued, or aggravated by an unreasonable refusal to submit to medical or surgical treatment.65 Further it has been held, in the absence of provision in the statute, that a continuing disability due to the willful or unreasonable refusal of the claimant to submit himself to safe and simple surgical treatment is not proximately caused by the accident. But although them of doubtful value in tracing 56. In re Sponatski, 220 Mass. 526, "Where there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy 'without conscious volition to produce death, having knowledge of the physical nature and consequences of the act,' then there is a direct and unbroken causal connection between the physical injury and the death. But where the resulting insanity is such as to cause suicide through a voluntary wilful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act even though choice is dominated and ruled by a disordered mind, then there is a new and independent agency which breaks the chain of causation arising from the injury." In re Sponatski, supra. 57. See Negligence [29 Cyc 488]. 58. Milwaukee V. Industrial Commn., 160 Wis. 238, 151 NW 247. 59. Lesh v. Illinois Steel Co., 163 Wis. 124, 157 NW 539. Disease occasioned by injury see supra § 55. 60. In re Burns, 218 Mass. 8, 105 NE 601, AnnCas1916A 787; Pelletier v. Lachance, 47 Que. Super. 526. Compare Newcomb v. Albertson, 85 N. J. L. 435, 438, 89 A 928 (where the court said: "In the present case, it is said that the chain of causation is broken because the infection was due to the failure of the physician to take proper precautions. There is no finding to that effect and the evidence is not before us. We cannot assume that the infection could be caused only by the negligence of the physician, and it is therefore unnecessary to decide whether such negligence would amount to such a break in the chain of causation that the employer would not be liable"). [a] Illustration.-Where an employee had sustained an injury to his spine from which death must sooner or later ensue, but the immediate cause of death was blood poisoning from the development of a bed sore. an award of compensation for the 66 death of the employee was sustained. In re Burns, 218 Mass. 8, 105 NE 601, AnnCas1916A 787. 61. Pawlak v. Hayes, 162 Wis. 503, 156 NW 464. 62. Ruth V. Witherspoon-Englar Co., (Kan.) 157 P 403; Humber Towing Co. v. Barclay, 5 BWCC 142. But see Beadle v. Milton, 5 WCC 55 (containing a dictum to the contrary). 63. Ruth v. Witherspoon-Englar Co., (Kan.) 157 P 403. [a] Reason for rule.-"A part of the loss occasioned by an accidental injury to a workman is cast upon the employer, not as reparation for wrongdoing, but on the theory that it should be treated as a part of the ordinary expense of operation. So much of an employé's incapacity as is the direct result of unskillful medical treatment does not arise out of and in the course of his employment' within the meaning of that phrase as used in the statute. Laws 1911, c. 218 § 1. For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not his employer be of the number." Ruth v. Witherspoon-Englar Co., (Kan.) 157 P 403, 404. of 64. As determining amount compensation see infra § 94. 65. See statutory provisions; and Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24. 66. Lesh v. Illinois Steel Co., 163 Wis. 124, 157 NW 539; Tutton V. Steamship Majestic, [1909] 2 K. B. 54, 2 BWCC 346 (refusal not unreasonable); Warncken V. Moreland, [1909] 1 K. B. 184, 2 BWCC 350; Wright v. Sneyd Collieries, 8 BWCC 537, 113 L. T. Rep. N. S 633; Dolan v. Ward, 8 BWCC 514; Walsh v. Lock, 7 BWCC 117, 110 L. T. Rep. N. S. 452; O'Neill v. Brown, 6 BWCC 428, [1913] S. C. 653; Wheeler v. Dawson, 5 BWCC 645; Moss v. Akers, 4 BWCC 294 (holding refusal not unreasonable); Burgess v. Jewell, 4 BWCC 145 (holding refusal not unreasonable); Hawkes v. Coles, 3 BWCC 163 (holding refusal not unreasonable); Paddington Borough Council v. Stack, 2 BWCC 402; Gilbert v. Fairweather, BWCC 349; Donnelly v. Baird. 1 BWCC 95, 45 Sc. L. Rep. 394. See Kricinovich v. American Car, etc., Co., (Mich.) 159 NW 362 (to same effect but not specifically put on ground of proximate cause); Gracie v. Clyde Spinning Co., [1915] S. C. 906 (where it was held in an opinion by the Lord President that, save in very special circumstances, the proximate cause of incapacity never can be the unreasonable refusal of workman to undergo an operation, if his own medical adviser advises him against undergoing that operation); Sweeney v. Pumpherston Oil Co., 40 Sc. L. Rep. 721 (where compensation was allowed); Anderson v. Baird, 40 1 a the statute requires the employer to furnish medical services, the employee by refusing such services does not forfeit his right to compensation unless such refusal is unreasonable or willful.67, Neglect on the part of the workman in procuring or conforming to medical or surgical treatment must be the cause of his subsequent condition in order to deprive him of the right to compensation.68 [§ 63] C. Arising out of and in the Course of Employment-1. In General. Under the more common provisions of the statutes it is necessary that Sc. L. Rep. 263 (holding_refusal reasonable). But see Rothwell V. Davies, 5 WCC 141, 19 T. L. R. 423 (where Cozens-Hardy said that there was nothing in the act which imposed on a workman the obligation to submit to a surgical operation). the act is not damages in the technical sense, and that the rules relating thereto are not to be applied in cases arising under this act, and cases have been cited simply for the purpose of showing that damages accruing as a direct result of the "Where, as in this case, the appli- claimant's unreasonable refusal to cant under the Workmen's Compensa- submit to reasonable medical and tion Act unreasonably refuses to un-surgical treatment, where the results dergo a safe and simple surgical operation which is fairly certain to result in a removal of the disability and is not attended with serious risk or pain and is such as an ordinarily prudent and courageous person would submit to for his own benefit and comfort, no question of compensation being involved, the disability which the claimant suffers thereafter, a reasonable time being allowed for recovery, is not proximately caused by the accident, but is the direct result of such unreasonable refusal." Lesh v. Illinois Steel Co., 163 Wis. 124, 131, 157 NW 539. [a] Discussion of rule. "In the course of his opinion [Donnelly v. Baird, 1 BWCC 95, 45 Sc. L. Rep. 394], Lord Justice-Clerk said: "The question whether a refusal to submit to skilled treatment for the restoration, whole or partial, of capacity for work is an unreasonable refusal, is necessarily a question of degree. For it cannot be maintained that no matter what be the severity of the operation recommended, or how great soever the risk to life or general health of the treatment, the workman loses right to compensation unless he brings himself to undergo the treatment and to take the risk. I think the sound view on this matter is well expressed by Lord Adam in the case of Dowds v. Bennie, 40 Sc. L. Rep. 239, when he laid it down that a workman who has been incapacitated is not bound in every case to submit to any medical or surgical treatment that is proposed, under the penalty, if he refuses, of forfeiture of his right to a weekly payment-e. g., in the case where a serious surgical operation is proposed with more or less probability of a successful cure. On the other hand, I hold it to be the duty of the injured workman to submit to such treatment, medical or surgical, as involves no serious risk or suffering, such an operation as a man of ordinarily manly character would undergo for his own good, in a case where no question of compensation due by another existed. In preparing this opinion I find that I have used almost the terms which are to be found in the case of Anderson v. Baird, 40 Sc. L. Rep. 263. These two cases which I have referred to seem to me to practically rule this case.' Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 276, 144 NW 563, LRA 1916A 381, AnnCas1915D 476. [b] "No question of compelling the applicant to submit to an operation is involved.-(1) The question is: Shall society recompense a workman for disability caused by his unreasonable refusal to adopt such means to effect a recovery as an ordinarily prudent person would use under like circumstances and which would result in the removal of the disability within the rule as stated above? It is true that the compensation awarded under the terms of are fairly certain, were not even in tort cases held to be proximately caused by the accident. Lesh v. Illinois Steel Co., 163 Wis. 124, 131, 157 NW 539. (2) "Lord McLaren said: [in Donnelly v. Baird, 1 BWCC 95, 45 Sc. L. Rep. 394] "There is of course no question of compelling the party to submit to an operation. The question is whether a party declines to undergo what would be described by experts as a reasonable and safe operation is to be considered as a sufferer from the effect of an injury received in the course of his employment, or whether his suffering and consequent inability to work at his trade ought not to be attributed to his voluntary action in declining to avail himself of reasonable surgical treatment." " Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 276, 144 NW 563, LRA1916A 381, AnnCas 1915D 476. [c] "The problem therefore comes to be, Is the workman's refusal to undergo this operation an unreasonable one? Or it might be put, Is the workman's incapacity really owing to his original accident, or to an unreasonable refusal on his part to undergo the operation? Obviously, I think all cases of this sort fall to be determined upon their circumstances; each one upon its own individual circumstances; and, indeed, the necessary introduction of the word 'reasonable' seems to make that very clear, because a refusal may be perfectly reasonable in one set of circumstances and perfectly unreasonable in another set of circumstances." (per Lord Dundas) O'Neill v. Brown, 6 BWCC 428, 431, [1913] S. C. 653. [d] Illustrations.—(1) A slight surgical operation to remove a nodule involving a superficial nerve. Lesh v. Illinois Steel Co., 163 Wis. 124, 157 NW 539. (2) Removal of stumps of two toes previously partially amputated. O'Neill v. Brown, 6 BWCC 428, [1913] S. C. 653. 67. Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 144 NW 563, LRA1916A 381 and note, AnnCas 1915D 476 and note. [a] For example, where a foreigner unable to speak or understand English, suffering great pain and unacquainted with his surroundings, refused to consent to an operation for peritonitis, for fifteen or sixteen hours after it was first found to be necessary, it could not be held as a matter of law that his conduct was so unreasonable and persistent as to defeat a claim for compensation by his widow. Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 144 NW 563, LRA1916A 381, AnnCas1915D 476. 68. Powell v. Crow's Nest Pass Coal Co., (B. C.) 8 BWCC 653, 23 Dom LR 57, 32 WestLR 218. 8 West Wkly 1086 [aff 26 DomLR 317]; Humber Towing Co. v. Barclay, 5 BWCC 142. [a] Illustrations.—(1) The neg lect of an injured servant to treat an injury to his eye does not affect the liability of the employer, unless it has aggravated the injury so that the condition of the injured person is no longer due to the injury caused by the accident, but arises from the neglect or unreasonable conduct of such injured person. Powell v. Crow's Nest Pass Coal Co., (B. C.) 8 BWCC 653, 23 DomLR 57, 32 West LR 218, 8 West Wkly 1086 [aff 26 Dom LR 317]. (2) An employer is not bound to continue weekly payments to an injured workman where the continuance of his incapacity is due to his neglect to comply with certain simple medical directions which have been given to him. Dowds v. Bennie, 40 Sc. L. Rep. 239. [b] Burden is on employer to establish this fact. Marshall V. Orient Steam Nav. Co., [1910] 1 K. B 79, 3 BWCC 15. 69. Conn.-Larke V. John Hancock Mut. L. Ins. Co., 97 A 320; Mann v. Glastonbury Knitting Co., 96 A 368. Mass.- In re Savage, 222. Mass. 205, 110 NE 283; In re Milliken, 216 Mass. 293, 103 NE 898, LRA1916A 337; In re McNicol, 215 Mass. 497, 102 NE 697, LRA1916A 306. Mich.-Bayer v. Bayer, 158 NW 109. Nebr.-Pierce v. Boyer-Van Kuran Lumber, etc., Co., 99 Nebr. 321, 156 NW 509, LRA1916D 970. N. J.-Walther v. American Paper Co., (Sup.) 98 A 264; Schmoll V. Weisbrod, etc., Brewing Co., (Sup.) 97 A 723; Hulley v. Moosbrugger, 88 N. J. L. 161, 95 A 1007 [rev 87 N. J. L. 103, 93 A 79]; Steers v. Dunnewald, 85 N. J. L. 449, 89 A 1007. N. Y.-De Voe v. New York State R. Co., 218 N. Y. 318, 113 NE 256 [aff 169 App. Div. 472, 155 NYS 12]; Heitz v. Ruppert, 218 N. Y. 148, 112 NE 750; Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620. W. Va.-Archibald v. Ott, 87 SE 791. Wis. Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996, LRA1916A 339. Eng. Fitzgerald v. Clarke, [1908] 2 K. B. 796, 1 BWCC 197; Smith v. Lancashire, etc., R. Co., [1899] 1 Q. B. 141, 1 WCC 1; Gilbert v. The Nizam, 3 BWCC 455; Chitty v. Nelson, 2 BWCC 496. Alta.-Lasturka v. Grand Trunk Pac. R. Co., 7 BWCC 1031. "It seems to be agreed that the words 'arising out of and in the course of his employment' do not make the employer an insurer against all the risks of the business, but include only those injuries arising from the risks of the business which are suffered while the employé is acting within the scope of his employment." Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368. [a] Under the federal act of 1908 the injury need not arise out of the employment. In re Bailey, Op. Sol. Dept. Labor 297 (holding that a workman bitten by a mad dog, while attending to his duties, was injured in the course of employment). 70. Stertz V. Industrial Ins. Commn., 91 Wash. 588, 158 P 256. 71. Stertz V. Industrial Ins. Commn., 91 Wash. 588, 158 P 256. 72. Archibald v. Ott, (W. Va.) 87 SE 791. "In England and also in some courts here attempts have been made, of" are construed to refer to the origin or cause of the injury, and the words "in the course of" to refer to the time, place, and circumstances under which it occurred.73 An injury which occurs.in the course of the employment will ordinarily, but not necessarily, arise out of it," while an injury arising out of an employment almost necessarily occurs in the course of it.75 In determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant circumstances;76 and it has indeed been stated rather broadly but by eminent authority that argument by analogy is valueless.” English decisions. Since the phrases" arising out are of " and " in the course of the employment employed in the English act, decisions of the courts of England may be considered in determining their meaning." 78 [64] 2. Arising out of Employment-a. In General. It has been well said that it is not easy to give a comprehensive definition of the words "arising out of the employment," which shall actually include all cases within the act, and with precision exclude those without its terms.79 An injury may be said to arise out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.80 A risk is "incidental to the employment" when it belongs to, or is con with more or less success, to formu- | jury might occur out of an act or late general rules with regard to the omission for the exclusive benefit of shade of distinction between the the employé, or of another than the terms out of and in the course of, master, while the employé is engaged as used in the act. All agree that in the course of his employment. In the expressions are not intended to order to restrict beyond the reach of be synonymous. An injury may be question the words in the course of received in the course of the employ- the employment,' the words 'arising ment, and still have no casual con- out of were added, so that the proof nection with it so that it can be said of the one without the other will not to arise out of the employment.' bring a case within the act." Larke State v. St. Louis County Dist. Ct., v. John Hancock Mut. L. Ins. Co., 129 Minn. 176, 179, 151 NW 912. "To justify an award, the accident must have arisen 'out of' as well as in the course of the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied." Hopkins v. Michigan Sugar Co., 184 Mich. 87, 90, 150 NW 325, LRA1916A 310. 73. Hopkins V. Michigan Sugar Co., 184 Mich. 87, 150 NW 325, LŘA 1916A 310; Hills v. Blair, 182 Mich. 20, 148 NW 243; Rayner v. Sligh Furniture Co., 180 Mich. 168, 170, 146 NW 665, LRA1916A 22 and note, Ann Cas1916A 386; Walther v. American Paper Co., (N. J. Sup.) 98 A 264; Archibald v. Ott, (W. Va.) 87 SE 791; Fitzgerald v. Clarke, [1908] 2 K. B. 796, 1 BWCC 197. "In Fitzgerald v. Clarke, [1908] 2 K. B. 796, 1 BWCC 197, Buckley, L. J., stated the rule as follows: "The words "out of and in the course of the employment" are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning "out of," that is to say, "in the course of.' The former words must mean something different from the latter words. The workman must satisfy both the one and the other. The words "out of" point, I think, to the origin or cause of the accident; the words "in the course of" to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words "out of" involves, I think, the idea that the accident is in some sense due to the employment.' Rayner v. Sligh Furniture Co., 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." In re McNichol, 215 Mass. 497, 498, 102 NE 697, LRA 1916A 306 [quot Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368]. 74. Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320, 322; Archibald v. Ott, (W. Va.) 87 SE 791. "An injury which Occurs in the course of the employment will ordinarily arise out of the employment. But not necessarily so, for the in supra. 75. Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 NW 325, LRA 1916A 310. (2) of employment. (1) Intoxicated officer on shipboard falling down hatch after being ordered to quarters in another part of ship. Horsfall v. Steamship Jura, 6 BWCC 213. Fall from bicycle by collector twenty minutes after he had called on customer and five minutes after he had called at home to get bicycle lamp not needed in service of employer. Butt v. Provident Clothing, etc., Co., 6 BWCC 18. (3) Injury to piecer in spinning mill while cleaning machinery in motion. Naylor v. Musgrave Spinning Co., 4 BWCC 286. (4) Cook returning to vessel to sleep on board contrary to rules. Griggs v. Steamship Gamecock, 6 BWCC 15. (5) Drowning of bargeman. Bines v. "Previous decisions are illustra-Gueret, 6 BWCC 120. (6) Blood tions of the way in which Judges look at cases, and in that sense are useful and suggestive; but I think we ought to beware of allowing tests or guides which have been suggested by the Court in one set of circumstances, or in one class of cases, to be applied to other surroundings, and thus by degrees to substitute themselves for the words of the Act itself" (per Lord Loreburn, L. C.). Blair v Chilton, 8 BWCC 324, 326, 113 L. T. Rep. N. S. 514 [aff 7 BWCC 607, 30 T. L. R. 623]. 76. Kitchenham v. Steamship Johannesburg, [1911] A. C. 417, 4 BWCC 311, 312. "Cases are really valuable in so ma [a] Illustrative fact cases of acci- V. poisoning from cut while railroad employee was at home. Chandler v. Great Western R. Co., 5 BWCC 254, 106 L. T. Rep. N. S. 479. 77. Kitchenham v. Steamship Johannesburg, [1911] A. C. 417, 4 BWCC 311 312 (where Lord Loreburn, L. C., said: "We have to decide each case on the facts. Argument by analogy is valueless. I am getting afraid to say anything more by way of judgment than that the appeal should be allowed or dismissed, because what one says in one case is used as an argument why one should decide a particular way in another case"). 78. Ill.-Brown v. Decatur, 188 Ill. A. 147. 497, 102 NE 697, LRA1916A 306. Mich.-Hills v. Blair, 182 Mich. 20, 148 NW 243; Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 NW 665, LRA1916A 22 and note, AnnCas1916A 386. N. J.-Hulley v. Moosbrugger, 88 N. J. L. 161. 95 A 1007 [rev 87 N. J. L. 103, 93 A 79]; Bryant v. Fissell, 84 N. J. L. 72, 86 A 458. N. Y.-De Filippis v. Falkenberg, 170 App. Div. 153, 155 NYS 761; Newman v. Newman, 169 App. Div. 745, 155 NYS 665; Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620. 79. In re McNicol, 215 Mass. 497, Mass.-In re McNicol, 215 Mass. N. J.-Hulley v. Moosbrugger, 88 Eng. Amys v. Barton, [1912] 1 K. B. 40, 5 BWCC 117; Baird v. Robson, 7 BWCC 925; Aitken v. Finlayson, BWCC 918, [1914] S. C. 770. Alta. Ferguson v. Brick, 7 BWCC 1054. Sask. Kennedy v. Grand Trunk Pac. R. Co., BWCC 1046. "An injury '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. Under this test, if the injury can be seen to have fol 81 not chargeable with any risk which the place where the work was to be performed entails by reason of some peculiar and extraordinary situation existing there, unless he is aware of such added risk.8 87 85 [§ 65] b. Causal Connection Generally. There must be a causal connection between the employment and the injury,86 and the injury must be the rational consequence of some hazard connected with the employment.s The danger to which the employee is exposed may originate either from the employment it entails, or the doing of something | Milliken, 216 Mass. 293, 103 NE 898, incidental to the employment, was a LRA1916A 337. proximate cause of the injury, it arises out of the employment. An injury of this description is one of the risks of the employment; for it is due to it and arises from it, N. J.-Schmoll v. Weisbrod, etc., either directly or as incident to it, Brewing Co., (Sup.) 97 A 723. or to the conditions and exposure N. Y.-Heitz v. Ruppert, 218 N. Y. surrounding it And the proximate 148, 112 NE 750; De Filippis v. Falcause of the injury is not necessar-kenberg, 170 App. Div. 153, 155 NYS ily that which immediately arises out of the employment, but may be that which is reasonably incidental to it." Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320, 322. nected with, what a workman has to do in fulfilling his contract of service. It may be either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment.82 An injury which is a natural and necessary incident or consequence of the employment, although not foreseen or expected, arises out of it;83 nor need it be peculiar to the particular employment. However, the employer is lowed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." In re McNicol, 215 Mass. 497, 498, 102 NE 697, LRA1916A 306 [quot Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368; Hulley V. Moosbrugger, 88 N. J. L. 161, 164, 95 A 1007, LRA1916C 1203]. [a] Other definitions.-(1) "An accident arises 'out of' the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it." Bryant v. Fissell, 84 N. J. L. 72, 78, 86 A 458. See also Newark Pav. Co. v. Klotz, 85 N. J. L. 432, 91 A 91 (recognizing the rule). (2) "We shall not attempt to formulate a definition of the phrase, accidental injury arising out of the employment, except to say that the accident causing the injury must arise out of work or business being done for the master either by direct or implied authority." State v. St. Louis County Dist. Ct., 129 Minn. 176, 179, 151 NW 912. 81. Scott v. Payne, 85 N. J. L. 446, 89 A 927; Bryant v. Fissell, 84 N. J. L. 72, 86 A 458. 82. Bryant v. Fissell, 84 N. J. L. 72, 86 A 458. 83. Cal. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P 212. Conn.-Larke v. John Hancock Mut. L. Ins. Co., 97 A 320. Minn.-State V. Ramsey County Dist. Ct., 129 Minn. 502, 153 NW 119, LRA1916A 344; State v. St. Louis County Dist. Ct., 129 Minn. 176, 151 NW 912. N. J.-Taylor v. Seabrook, 87 N. J. L. 407, 94 A 399; Scott v. Payne, 85 N. J. L. 446, 89 A 927. N. Y.-Hendricks v. Seeman, 170 App. Div. 133, 155 NYS 638; Kingsley v. Donovan, 169 App. Div. 828, 155 NYS 801. [a] Illustration.-Where an employee mistook a dynamite cap for an exploded cartridge and attempted to fashion a key from it, the resulting injury arose from the employment. State V. St. Louis County Dist. Ct., 129 Minn. 176, 151 NW 912. [b] Injuries arising out of employment.-(1) Injury to deceased while working for defendant as a laborer in digging out a cellar in which there were some masonry piers, one of which, during the course of his work, fell on him, with fatal results. Taylor v. Seabrook, 87 N. J. L. 407, 94 A 399. (2) Injury to 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, as a result of the lifting chain becoming clogged, and on being forced through, splitting the block. Scott v. Payne, 85 N. J. L. 446, 89 A 927. (3) Injury to hand of employee while cleaning motor cycle owned by him, but used in part in employer's business. Kingsley V. Donovan, 169 App. Div. 828, 155 NYS 801. (4) Injury to helper on automobile truck through fall on jumping from truck to drive off boys who were stealing a ride. Hendricks v. Seeman, 170 App. Div. 133, 155 NYS 638. (5) Drowning of employee of ice company due to breaking of ice while patroling it to keep off trespassers. Jillson v. Ross, (R. I.) 94 A 717. (6) Injury to engineer of trawler by contact mine. Risdale V. Steamship Kilmarnock, [1915] 1 K. B. 503, 8 BW CC 7. [c] Police officer, injured in attempting to prevent violation of state law, is performing service growing out of and incidental to employment. Kiel V. State Industrial Commn., 163 Wis. 441, 158 NW 68. 84. Mahowald v. Thompson-Starrett Co., (Minn.) 158 NW 913; State V. Ramsey County Dist. Ct.. 129 Minn. 502, 153 NW 119, LRA1916A 244. 85. Schmoll V. Weisbrod, etc., Brewing Co., (N. J. Sup.) 97 A 723. [a] Illustration.-Character of place where assault was made on brewery wagon driver and collector is not of significance, where it is not shown that the employer had any knowledge or notice of the danger of the locality. Schmoll v. Weisbrod, etc., Brewing Co., (N. J. Sup.) 97 A 723. R. I.-Jillson v. Ross, 94 A 717. "The obligation to pay compensation under the workmen's compensation act equally is absolute when the fact is established that the injury has arisen out of and in the course of the employment. Part 11, § 1. It is of no significance whether the precise physical harm was the natural and probable or the abnormal and inconceivable consequence of the employment. The single inquiry is whether in truth'it did arise out of and in the course of that employment." In re Sponatski, 220 Mass. 526, 531, 108 NE 466, LRA1916A 333. "If the nature of the employment, or the conditions under which it was 355; In re Madden, 222 Mass. 487, pursued, or the exposure to injury 111 NE 379, LRA1916D 1000; In re 86. Cal. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P 212. Conn.-Larke V. John Hancock Mut L. Ins. Co., 97 A 320. Mass.-In re Sanderson, 113 NE Mich.-Kennally v. Stearns Salt, etc., Co., 157 NW 378; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 NW 325, LRA1916A 310. 761; Newman v. Newman, 169 App. Div. 745, 155 NYS 665. Wis.-Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996, LRA1916A 339. Eng. Barnes v. Nunnery Colliery Co., [1912] A. C. 44, 5 BWCC 195 [aff 4 BWCC 43]; Frith v. Steamship Louisianian, [1912] 2 K. B. 155, 5 BWCC 410; Craske v. Wigan, [1909] 2 K. B. 635, 2 BWCC 35; Smith v. South Normanton Colliery Co., [1903] 1 K. B. 204, 5 WCC 14; Smith v. Lancashire, etc., R. Co., [1899] 1 Q. B. 141, 1 WCC 1; Morris v. Rowbotham, 8 BWCC 157; Whitfield v. Lambert, 8 BWCC 91, 112 L. T. Rep. N. S. 803; Price v. Tredegar Iron, etc., Co., 7 BWCC 387, 111 L. T. Rep. N. S. 688; Murray v. Allan, 6 BWCC 215; Jenkinson v. Harrison, 4 BWCC 194; Phillips v. Williams, 4 BWCC 143; Williams v. Wigan Coal, etc., Co., 3 BWCC 65; Clifford v. Joy, 2 BWCC 32; Simpson v. Sinclair, 53 Sc. L. Rep. 94. "It is not enough to say the accident would not have happened if the servant had not been engaged in the work at the time, or had not been in that place. It must appear that it resulted from something he was doing in the course of his work or from some peculiar danger to which the work exposed him.' Archibald v. Ott, (W. Va.) 87 SE 791, 792. "If the injury results to an employé from the doing of something which the employment neither required nor expected, or in a place where his employment should not take him. it cannot be said to arise out of the employment." Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320, 322. [a] In Ontario, under the original statute, Rev. St. (1914) c 146, now repealed by St. (1914) c 25, it was held that the master was liable for personal injuries sustained by the workman by reason of conformity to the negligent order of a superintendent, and that it was not necessary that conformity to the order should be the causa causans of the injury if it were a sine qua non. Turner v. East. 32 Ont. L. 375, 20 Dom LR 332, 7 OntWN 377. 87. Mass.-Hewitt V. Casualty Co. of America, 113 NE 572; In re Harbroe, 223 Mass. 139, 111 NE 609, LRA1916D 933; In re Madden, 222 Mass. 487, 111 NE 379, LRA1916D 1000: In re Reithel, 222 Mass. 163, 109 NE 951, LRA1916A 304; In re McPhee, 222 Mass. 1, 109 NE 633. Mich.-Beaudry V. Watkins, 158 NW 16. Minn.-State V. Koochiching County Dist. Ct., 158 NW 713. N. J.-Newcomb v. Albertson, 85 N. J. L. 435, 89 A 928. Wis. Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 NW 143, LRA1916D 968. Eng. Craske v. Wigan, [1909] 2 K. B. 635, 2 BWCC 35; Pritchard v. Torkington, 7 BWCC 719; McLaren v. Caledonian R. Co., 5 BWCC 492, For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. [1911] S. C. 1075; Butler v. Burton-sault on coemployee does not arise | Paper Co., (N. J. Sup.) 98 A 264. On-Trent Union, 5 BWCC 355; Peel v. Lawrence, 5 BWCC 274, 106 L. T. Rep. N. S. 482; Murphy v. Berwick, 2 BWCC 103. "The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be In re Madden, 222 Mass. 487, 495, 111 NE 379, LRA1916D 1000 [quot In re Harbroe, 223 Mass. 139, 111 NE 709, 710, LRA1916D 933]. no recovery." "An injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment" does not arise out of the employment. In re McNicol, 215 Mass. 497, 499, 102 NE 697, LRÁ1916A 306. [a] Illustrations.-(1) Shooting of night watchman by a police officer in exchange of shots in the dark, each party thinking the other criminals, does not arise out of the night watchman's employment. In re Harbroe, 223 Mass. 139, 111 NE 709, LRA1916D 933. (2) Where a locomotive engineer fell because the apron between the engine and the tender was smooth and not rigid, his injury was the result of a hazard incident to the employment. Milwaukee Coke, etc., Co. V. Industrial Commn., 160 Wis. 247, 151 NW 245. (3) In Where an employee who was a member of a village fire department and had also organized a private fire department for his employer was injured through the inhalation of smoke while extinguishing a fire near his employer's property, it cannot be said that the injury did not arise out of the employment, although after exhausting his employer's chemical engine he remained at the fire working with the public fire department. In. re McPhee, 222 Mass. 1, 109 NE 633. (4) Where a teamster by reason of loss of memory caused by a personal injury received about five years before by falling from his wagon lost his way while driving, left his wagon and wandered about and fell into a swamp, where he remained all night, and lied from pneumonia brought on by exposure, his death did not arise out of the employment. In re Milliken, 216 Mass. 293, 103 NE 898, LRA1916A 337 and note. (5) jury to a life insurance agent from the overturning of an automobile while riding with a prospective customer at his invitation, to explain 'the policy, did not arise out of his employment, within the workmen's compensation act. Hewitt v. Casualty Co. of America, (Mass.) 113 NE 572. Injury to a railroad con(6) struction laborer while extinguishing a forest fire under orders of a state fire warden does not arise out of employment. Kennelly v. Stearns Salt, etc., Co., (Mich.) 157 NW 378. (7) Injury from collision with fellow employee while running to punch a time clock arises out of employment. Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 NW 665, LRA1916A 22 and note, AnnCas1916A 386. (8) Accident to a delivery boy riding a bicycle, occasioned by catching on to the rear end of motor truck, may be said to arise out of employment. Beaudry v. Watkins, (Mich.) 158 NW (9) Fall of a driver from wagon arises out of employment. Evans v. Holloway, 7 BWCC 248. (10) Explosion of gelignite cartridge while miner was preparing a shot arose out of employment. Joyce v. Wellingborough Iron Co., 5 BWCC 126. (11) Injury resulting from as 16. a out of employment. Shaw v. Wigan Coal, etc., Co., 3 BWCC 81. (12) Biting of teamster, eating midday meal in stable, by stable cat arises out of employment. Rowland V. Wright, 1 BWCC 192. (13) Accident to house surgeon due to his consenting to be used as subject for X-ray experiment does not arise out of employment. Curtis v. Talbot, etc., Infirmary Committee, 5 BWCC 41. [b] Lead poisoning.-Plumbism contracted by lead grinder arises out of employment. In re Johnson, 217 Mass. 388, 104 NE 735. 88. Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320; Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 A 385, LRA1916A 315. "In the one case the conditions of danger from the conduct of the employment cause it [the injury]; in the other the conditions of danger which arise outside the employment, but are peculiar to it, cause it.' Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320, 322. "If there is an incidental or causal connection between the employment and the accident, the injury is deemed to have arisen out of the former, even when the connection is somewhat remote, and when the direct and immediate agency of injury is foreign." Archibald v. Ott, (W. Va.) 87 SE 791, 792. [a] Illustrations.-(1) Injury from frostbite arises out of the employment of an insurance solicitor and collector who was compelled to drive fifteen or twenty miles on a very cold day, going in and out of heated houses in making upward of fifty calls. Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320. (2) Where the conditions of the employment required the employee to cross a street where he was struck by an automobile, the injury arose out of the employment. Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 A 385, LRA1916A 315. (2) (6) Where the motive in assault on a brewery wagon driver and collector is not shown to have been robbery, and there is no evidence as to the identity of the assailant or as to the motive for the attack, the injury cannot be said to arise out of the employment. Schmoll v. Weisbrod, etc., Brewing Co., (N. J. Sup.) 97 A 723. (7) A bartender injured while on duty through being struck in the eye by a drinking glass thrown by a patron of the saloon who was so drunk that he did not know the nature of his act or what he was doing may be awarded compensation. State y. Koochiching County Dist. Ct., (Minn.) 158 NW 713. (8) Under the Washington act compensation was awarded for an injury sustained by an employee through an assault by a discharged former employee. Stertz v. Industrial Ins. Commn., 91 Wash. 588, 158 P 256. (9) The English cases are inharmonious; in several an injury by assault has been held to arise out of employment. Trim Joint Dist. School v. Kelly, [1914] A. C. 667, 7 BWCC 274 [aff 6 BWCC 921] (assault on schoolmaster by boys whom he had previously disciplined); Challis v. London, etc., R. Co., [1905] 2 K. B. 154, 7 WCC 23 (engineer on railroad train struck by stone thrown by boy); Shaw v. Macfarlane, 8 BWCC 382, [1915] S. C. 273 (where an iron molder's helper while stooping over his work was struck by an intoxicated stranger and caused to fall and to sustain burns); Weekes v. Stead, 7 BWCC 398, 111 L. T. Rep. N. S. 693 (where a yard foreman of a firm of furniture movers was assaulted by a man desiring to rent a van); Nisbet v. Rayne, 3 BWCC 507 (where a cashier with money for the pay roll was shot and robbed). (10) On the contrary the following have been held not to arise out of employment: a felonious assault by an employer on the employee. Blake v. Head, 5 BWCC 303, 106 L. T. Rep. N. S. 822. (11) Assault on a teamster by drunken man who had been warned away from a horse. Mitchinson v. Day, [1913] 1 K. B. 603, 6 BWCC 190. (12) Assault on a strike breaker on his way to his home at noon. Poulton v. Kelsall, [1912] 2 K. B. 131, 5 BWCC 318. (13) Assault on a foreman attempting to protect his employer from the consequences of an altercation in which he had engaged with a stranger. Collins v. Collins, [1907] 2 Ir. 104. 89. Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 NE 999; London, etc., Shipping Co. v. Brown, 7 F. (Ct. Sess.) 488; Matthews v. Bedworth, 1 WCC 124. [b] Injuries by assault.-(1) In- SO caused by himself." Pierce v. Boyer-Van Kuran Lumber, etc., Co., 99 Nebr. 321, 324, 156 NW 509, LRA 1916D 970. (4) Murder of night watchman may arise out of employment. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 159 P 423. (5) Killing of night watchman by assault for purpose of robbing him may be held to have arisen from employment. Walther V. American Brown v. Decatur, 188 Ill. A. 147; Evans v. Astley, [1911] A. C. 674, 4 BWCC 319 [aff [1911] 1 K. B. 1036, 4 BWCC 209]; Pepper v. Sayer, [1914] 3 K. B. 994, 7 BWCC 616; Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747, 4 BWCC 269; Sanderson v. Wright, 7 BWCC 141, 110 L. T. Rep. N. S. 517; Gallant v. Steamship Gabir, 6 BWCC 9, 108 L. T. Rep. N. S. 50. To same effect Erickson v. American Well Works, 196 Ill. A. 346. V. [a] Applications of this rule have been made to: (1) An injury due to an attempt by the employee to perform his duties while intoxicated. Williams Llandudno Coaching, etc., Co., [1915] 2 K. B. 101, 8 BWCC 143; Frazer v. Riddell, 7 BWCC 841, [1914] S. C. 125. (2) An attempt to Evans v. Astley, take a short cut. [1911] A. C. 674, 4 BWCC 319 [aff [1911] 1 K. B. 1036, 4 BWCC 209]; Pepper v. Sayer, [1914] 3 K. B. 994, 7 |