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forbidden manner, 91 a distinction being taken in this regard from cases in which the act is altogether outside of, and unconnected with, the employment.92 An accident cannot be said to arise out of the employment where it is due to a new and added peril to which the employee by his own conduct has needlessly exposed himself.93

[66] c. Previously Weakened or Diseased Con

BWCC 616. (3) An attempt by a window cleaner to pass from one window to another along a ledge. Bullworthy v. Glanfield, 7 BWCC 191.

91. Corbett v. Pitt, 8 BWCC 466; Edmunds v. Ship Peterston, 5 BWCC 157, 28 T. L. R. 18; Mawdsley v. West Lehigh Colliery Co., 5 BWCC 80.

92. Barnes v. Nunnery Colliery Co., [1912] A. C. 44, 5 BWCC 195 [aff 4 BWCC 43]; Lowe V. Pearson, [1899] 1 Q. B. 261, 1 WCC 5; Keen v. St. Clement's Press, 7 BWCC 542; Gallant v. Steamship Gabir, 6 BWCC 9, 108 L. T. Rep. Ñ. S. 50; Cole v. Evans, 4 BWCC 138; Furniss v. Gartside, 3 BWCC 411.

93. Herbert v. Fox, [1916] A. C. 405 [aff [1915] 2 K. B. 81, 8 BWCC 94]; Plumb v. Cobden Flour Mills Co., [1914] A. C. 62, 7 BWCC 1 [aff 6 BWCC 245, 108 L. T. Rep. N. S. 1611; Jibb v. Chadwick, [1915] 2 K. B. 94, 8 BWCC 152; Brice v. Lloyd, [1909] 2 K. B. 804, 2 BWCC 26; Cook v. Manvers Main Collieries, 7 BWCC 696; Guilfoyle v. Fennessy, 6 BWCC 453; Wemyss Coal Co. v. Symon, 6 BWCC 298, [1912] S. C. 1239; McLaren v. Caledonian R. Co., 5 BWCC 492, [1911] S. C. 1075; Revie v. Cumming, 5 BWCC 483, [1911] S. C. 1032; Powell v. Bryndu Colliery Co., 5 BW CC 124; Parker v. Pout, 5 BWCC 45, 105 L. T. Rep. N. S. 493; McDaid v. Steel, 4 BWCC 412, [1911] S. C. 859; Kane v. Merry, 4 BWCC 379, [1911] S. C. 533; Rose v. Morrison, 4 BWCC 277, 105 L. T. Rep. N. S. 2; Cole v. Evans, 4 BWCC 138; Pope v. Hill's Plymouth Co., 3 BWCC 339, 102 L. T. Rep. N. S. 632 [app dism 5 BWCC 175]; Williams v. Wigan Coal, etc., Co., 3 BWCC 65; Morrison v. Clyde Nav. Trustees, 2 BWCC 99, 46 Sc. L. Rep. 40; Powell v. Lanarkshire Steel Co., 6 F. (Ct. Sess.) 1039; Callaghan v Maxwell, 37 Sc. L. Rep. 313; Tavery v. Grand Trunk R. Co., 48 Que. Super. 278, 24 Dom LR 522. [a] Illustrations.-(1) Messenger boy jumping on moving street car. Wemyss Coal Co. v. Symon, 6 BWCC 298, [1912] S. C. 1239. (2) Miner riding in empty tub contrary to orders. Barnes V. Nunnery Colliery Co., [1912] A. C. 44, 5 BWCC 195 [aff 4 BWCC 431: Bates v. Mirfield Coal Co., 6 BWCC 165. (3) Miner, in a hurry to get home, attempting to pass between moving tubs instead of waiting, as told, until they were stationary. Baker v. Bradford, 140 L. T. J. 30. (4) Miner "letting down" loaded hutches instead of waiting for the pony driver whose duty it was to remove the loaded hutches. Baird v. Robson, 7 BWCC 925, 51 Sc. L. Rep. 747. (5) Workman in course of employment walking across railway line contrary to orders instead of crossing by bridge. Pritchard Torkington, 111 L. T. Rep. N. S.

917.

V.

[b] Applications of this rule have been made to: (1) Drunken condition of commercial traveler, exposing him to injury by railroad train. McCrae v. Renfrew, 7 BWCC 898. (2) Drunkenness of seaman, leading to injury while returning to ship. Nash v. Steamship Rangatira, [1914] 3 K. B. 978, 7 BWCC 590; Frith v. Steamship Louisianian, [1912] 2 K. B. 155,

5 BWCC 410.

94. Hartz v. Hartford Faience Co., (Conn.) 97 A 1020; In re Madden, 222 Mass. 487, 111 NE 379. LRA1916D 1000; In re Brightman, 220 Mass. 17, 107 NE 527, LRA1916A 321.

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[a] Delimitation of rule.-"The act [Stat. 1911 c. 751] is not a substitute for disability or old age pensions. It cannot be strained to include that kind of relief. Its ultimate purpose simply is to treat the cost of personal injuries incidental to the employment as a part of the cost of the business. It does not afford compensation for injuries or misfortunes, which merely are contemporaneous or coincident with the employment, or collateral to it. Not every diseased person suffering a misfortune while at work for a subscriber is entitled to compensation. The relief is so new that the tendency may be to inquire only as to the employment and the injury and to assume that these two factors constitute ground for compensation. But the essential connecting link of direct causal connection between the

The

personal injury and the employment
must be established before the act
becomes operative. The personal in-
jury must be the result of the em-
ployment and flow from it as the
inducing proximate cause.
rational mind must be able to
trace the resultant personal injury
to a proximate cause set in mo-
tion by the employment and not
by some other agency, or there can
be no recovery. In passing upon this
question, an humanitarian emotion
ought not to take the place of sound
judgment in the weighing of evi-
dence. The direct connection be-
tween the personal injury as a re-
sult and the employment as its prox-
imate cause must be proved by facts
before the right to compensation
springs into being. A high degree
of discrimination must be exercised
to determine whether the real cause
of an injury is disease or the hazard
of the employment. A disease, which
under any rational work is likely to
progress so as finally to disable the
employee, does not become a 'per-
sonal injury' under the act merely
because it reaches the point of dis-
ablement while work for a sub-
scriber is being pursued. It is only
when there is a direct causal con-
nection between the exertion of the
employment and the injury that an
award of compensation can be made.
The substantial question is whether
the diseased condition was the cause,
or whether the employment was a
proximate contributing cause. In the
former case, no award can be made;
in the latter, it ought to be made."
In re Madden, 222 Mass. 487, 494, 111
NE 379, LRA1916D 1000.

[b] Objections to rule consid-
ered.-(1) "It is argued that grave
economic consequences of far reach-
ing effect may follow from the act
as thus construed. It is said that
persons not in good health may be
altogether excluded from employ-
ment to their severe hardship, while
the cost of conducting commercial
and industrial enterprises may be-
come prohibitively large, all to the
detriment of the general welfare and
of the financial resources of the com-
monwealth. These considerations are
of great public moment. But these
factors relate to legislative questions
and the arguments founded on them
are distinctly legislative arguments.
They may be entitled to attention
and deliberation at the hands of the
legislative department of the govern-
ment. In the present forum they
cannot have decisive significance,
even if it were plain that the enu-
merated consequences were inevita-

ble." In re Madden, 222 Mass. 487,
494, 496, 111 NE 379, LRA1916D 1000.
(2) "It is contended that, since the
act contemplates a kind of accident
insurance as the means of affording
relief to the employee, it cannot have
been the intent of the Legislature to
include such risks as that here dis-
closed [acceleration of heart disease],
because of the difficulty of fixing a
rate of insurance. But there does not
appear as matter of law to be any
insuperable difficulty in this respect.
Fortuitous events, which appear to
be as difficult of forecast as this, are
In
common subjects of insurance."
re Madden, supra. (3) "It has been
argued with force on behalf of the
insurer that since the harm to the
employee was not wholly the effect
of the work but came in large part
from the previous weakened condi-
tion of the employee's heart, hence,
either there can be no award of com-
pensation, or it should be restricted
to that part of the injury which re-
sulted directly from the work, and
the part of the injury which flowed
from the previous condition should
be excluded. Even though the prem-
ise be sound, the conclusion does
not follow.
The previous con-
dition of health is of no consequence
in determining the amount of relief
to be afforded." In re Madden, su-
pra.

95. Hartz v. Hartford Faience Co., (Conn.) 97 A 1020; Carroll v. What Cheer Stables Co., (R. I.) 96 A 208, 210; Ismay v. Williamson, [1908] A. C. 437, 1 BWCC 232; Maskery v. Lancashire Shipping Co., 7 BWCC

428.

"An accident does not cease to be such because its remote cause was the idiopathic condition of the injured man; we must dissociate that idiopathic condition from the other facts and remember that he was obliged to run the risk by the very nature of his employment, and that the dangerous fall was brought about by the conditions of that employment." (per Collins, M. R.) Wicks v. Dowell, [1905] 2 K. B. 225, 229, 2 AnnCas 732 [quot Carroll v. What Cheer Stables Co., supra].

[a] Illustration.-Where a hack driver was pitched from his seat by the motion of the hack while driving and while helpless from dizziness or unconsciousness occasioned by a disease from which he was suffering, he was entitled to compensation for the resulting injuries, since his fall was an "accident arising out of his employment." Carroll v. What Cheer Stables Co., (R. I.) 96 A 208, 210 (where the court said: "The evidence does not show, as claimed by the appellant, that the petitioner's fall was 'caused solely by the workman's previously diseased condition,' nor does the justice of the superior court so decide; the justice says in his decree 'the fall probably being due to dizziness or unconsciousness induced by a disease from which he was suffering,' etc. But the decree also finds that the accident was one arising out of said employment'; there is at least as much evidence that the fall was due to an unexpected and accidental lurch of the hack into the gutter and towards or against the curbstone, as that it was due to dizziness or unconsciousness induced by disease. It seems to this court that the decision and the decree appealed from embody a conclusive finding of fact that dizziness or unconsciousness was not the sole cause

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

§ 67]

WORKMEN'S COMPENSATION ACTS

[§ 67] d. Risks Common to Public at Large. The cause of the injury must be a risk or exposure incidental to the employment and not common to the general public, regardless of the nature or the fact of their employment,96 or, the risk being common to the general public, the employee must have been

of the fall, and that there was evidence from which the justice could find as he did that the accident arose out of the employment").

96. Conn.-Larke v. John Hancock Mut. L. Ins. Co., 97 A 320; Mann v. Glastonbury Knitting Co., 96 A 368. Ill.-Brown v. Decatur, 188 Ill. A.

147.

Mass.-In re Sanderson, 113 NE 355; In re Harbroe, 223 Mass. 139, 111 NE 709, LRA1916D 933; In re McNicol, 215 Mass. 497, 102 NE 697, LRA1916A 306.

Lake Shore, Mich. Klawinski v. etc., R. Co., 185 Mich. 643, 152 NW Hopkins V. 342; 213, LRA1916A Michigan Sugar Co., 184 Mich. 87, 150 NW 325, LRA1916A 310.

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 v. Newman, 169 NE 750; Newman App. Div. 745, 155 NYS 665.

Wis.-Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996, LRA1916A 339.

exposed to it in a greater degree than other persons,
97 So where injury
by reason of his employment.9
results from exposure to weather conditions, the ex-
posure of the employee by reason of his employment
must be greater than that of other persons in that
locality.98

N. J. L. 266, 92 A 385, LRA1916A, pelled him to travel about the streets
315.

N. Y. Miller v. Taylor, 159 NYS 999.

Wis. Hoenig v. Industrial Commn.,
159 Wis. 646, 150 NW 996, LRA1916A
339.

Eng.-Pierce v. Provident Clothing,
etc., Co., [1911] 1 K. B. 997, 4 BWCC
242; Bett v. Hughes, 8 BWCC 362,
[1915] S. C. 150; Anderson v. Adam-
son, 6 BWCC 874; Refuge Assur. Co.
v. Millar, 5 BWCC 522, [1912] S. C.
37; McNeice v. Singer Sewing Mach.
Co., 4 BWCC 351, [1911] S. C. 12.

[a] Illustrations.-Where an em-
street
ployee, compelled to cross a
by the failure of his employer to
provide toilet facilities, was struck
by an automobile, the accident arose
out of the employment. Zabriskie v.
Erie R. Co., 86 N. J. L. 266, 269, 92
(where the
A 385, LRA1916A 315
court said: "If the trial court found.
as it evidently must have found and
was entitled to find, that by reason
of the lack of proper appliance in the
Morris building and the consequent
necessity of going elsewhere-a con-
dition for which the employer was of
course responsible-the practice had
arisen and been in force for an ex-

Eng.-Amys v. Barton, [1912] 1 K. B. 40, 5 BWCC 117; Craig v. Steamship Calabria, 7 BWCC 932, [1914] S. C. 765; Kinghorn v. Guthrie, 6 BWCC 887; White v. Sheep-tended period, of workmen resorting wash, 3 BWCC 382.

"The accident being due to a risk no greater than is run by all members of the public, did not arise out Newman of the employment." Newman, 169 App. Div. 745, 748, 155 NYS 665.

was

V.

An em

[a] Illustrations.—(1) ployee who is required to travel on his employer's business is not entitled to compensation, where his inoccasioned in his home jury town, after his return from a trip, by a fall on an icy street when going toward a street car with the intention of boarding it. Hopkins v. Mich(2) igan Sugar Co., 184 Mich. 87, 150 NW 325, LRA1916A 310 and note. Where deceased who drove a delivery wagon for a butcher and sometimes to his the shop came assisted in death in stumbling over a bucket of broken glass while he was making a delivery on foot, the injury was not the result of a risk incident to his employment, as this delivery exmore danger than posed him to no any other individual would have been exposed to while walking in the same place. Newman v. Newman, 169 App. Div. 745, 155 NYS 665.

(3) Where

an engine driver was injured during
the bombardment of Hartlepool by
an enemy fleet, the claim was dis-
allowed, there being no special risk
with the
connected

car

employment. Cooper v. North Eastern R. Co., 85 L. J. K. B. 187. (4) Injuries to a motorman received when struck by an automobile running near the curb as he was hurrying from the barn to catch a car of the company to take him to where he was to have his watch tested, a requirement of the employment. did not arise out of the course of his employment. De Voe v. New York State R. Co., 218 N. Y. 318, 113 NE 256 [aff 169 App. Div. 472, 155 NYS 12]. John HanV. 97. Conn.-Larke cock Mut. L. Ins. Co., 97 A 320. Ill.-Brown v. Decatur, 188 Ill. A.

147.

Mich.-Klawinski v. Lake Shore.
etc., R. Co., 185 Mich. 643, 152 NW
213, LRA1916A 342.
V. Thompson-
Minn.-Mahowald
Starrett Co., 158 NW 913; State v.
Ct.. 158
Koochiching County Dist.
v. Ramsey County
NW 713; State
Dist. Ct.. 129 Minn. 502, 153 NW 119.
LRA1916A 344.

N. J.-Zabriskie v. Erie R. Co., 86

from place to place, an injury to him
through being struck by an automo-
bile while waiting to take a street
car in order to reach a place where
he was to inspect a job in the course
of his employment arises out of the
(5) Injury to a
Tree Co., supra.
truck
employment. Kunze v. Detroit Shade
of a motor express
driver
through being struck by an automo-
bile while crossing the street on foot
to deliver a package arises out of
Miller v. Taylor, 159
employment.
NYS 999. (6) Injury to a teamster
whose duties included the loading of
his wagon, through stepping on a
board containing a rusty nail as he
was getting up into his wagon while
working for his employer in carrying
dirt from the city streets, arises out
of his employment. Putnam v. Mur-
(7) Injury to a
ray, 160 NYS. 811.
taxicab driver through a shot by the
sentry whose challenge he had been
unable to hear because of the noise
from the engine may be held to arise
Thorn v.
out of the employment.
Humm, 8 BWCC 190, 112 L. T. Rep.
N. S. 888. (8) Where a machine fit-
ter whose duty was to go around to
various places to be present at the
to walk along a road which was slip-
pery owing to the frost, and fell,
inspection of machines was obliged
injuries, compensation
was allowed. White v. Avery, 53 Sc.
sustaining
L. Rep. 122. (9) Street accidents not
connected with the employment will
not justify an award of compensa-
tion. Symmonds v. King, 8 BWCC
189: Slade v. Taylor, 8 BWCC 65;
Sheldon v. Needham, 7 BWCC 471,
111 L. T. Rep. N. S. 729; Greene v.
Shaw, 5 BWCC 573.

98. Conn. Larke v. John Hancock Mut. L. Ins. Co., 97 A 320.

287.

Mass.-In re McManaman, 113 NE
V. Lake Shore,
Mich. Klawinski
etc., R. Co., 185 Mich. 643, 152 NW
213, LRA1916A 342.
County
V. Ramsey
Minn.-State
Dist. Ct., 129 Minn. 502, 153 NW 119,
LRA1916A 344.

to the only place available, to reach
which they were necessarily obliged
to cross a public street, and that this
practice was known and assented to
by the employer (Dierkes v. Haux-
hurst Land Co., 80 N. J. L. 369, 79 A
361, 34 LRANS 693, 83 N. J. L. 623.
83 A 911), the workman was as much
obliged by the conditions of his em-
ployment to be where he was at the
time when he was struck as if he
had been a laborer tamping paving
blocks in the middle of the street.
Viewed in this aspect, the danger
was one which, in the language of
of
the cases, was peculiar to the em-
that the absence
ployment, in
proper facilities at the shop and the
necessity of crossing the street to
reach them, gave rise to it. It was
not the danger of an ordinary mem-
ber of the public crossing a street
on his own business, but was the
that
In-
subjection of the employe to
Failsworth
danger by the conditions of his em-
Eng. Andrew v.
The fact that the acci-
ployment.
V. Guthrie, 6
WCC 11; Kinghorn
dent may have been and probably dustrial Soc., [1904] 2 K. B. 32, 6
was due to the negligence of the
BWCC 887, [1913] S. C. 1155; Rod-
driver of the automobile, and per-
ger v. Paisley School Bd., 5 BWCC
547; Robson v. Blakey, 5 BWCC 536,
haps also to the contributory negli-
gence of the deceased, tends to cloud
the issue, but does not differentiate [1912] S. C. 334; Davies v. Gillespie,
5 BWCC 64; Karemaker v. Steamship
4 BWCC 295; Kelly
the situation from that of any work-
man who is required in the perform- Corsican,
ance of his work to go into a dan- Kerry County Council, 1 BWCC 194,
Nest
son, [1913] S. C. 1038.
gerous place and incur the dangers 42 Ir. L. T. 23; Adamson v. Ander-
V. Crow's
B. C.-Culshaw
connected with that place").
Pass Coal Co., 7 BWCC 1050.

[b] Risks of street travel.-(1)
"Where employés are compelled dur-
ing the course of their employment
to travel about the streets, it does
not seem to us to be unreasonable
the danger of being
to say that
struck by street cars, automobiles.
and traffic of every description should
be taken account of." Kunze v. De-
troit Shade Tree Co., (Mich.) 158
NW 851, 852. (2) Injury to a sales-
man and collector riding a bicycle
about the streets may arise out of
the employment. Pierce v. Provident
Clothing, etc., Co., [1911] 1 K. B. 997,
4 BWCC 242; McNeice v. Singer Sew-
ing Mach. Co., 4 BWCC 351, [1911] S.
C. 12. (3) Injury to a teamster driv-
ing on a street, through a fall on him
of a load of steel beams which was
being hoisted to the top of a building
under construction, arises out of the
Mahowald v. Thomn-
employment.
son-Starrett Co., (Minn.) 158 NW 913.
(4) Where the duties of an employee
as a tree trimmer and planter com-

Wis.-Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996, LRA1916A 339.

V.

the de

[a] Lightning.-(1) "If
ceased was exposed to injury from
lightning by reason of his employ-
ment, something more than the nor-
mal risk to which all are subject. if
his employment necessarily accentu-
ated the natural hazard from light-
ning, and the accident was natural
though unex-
to the employment,
from
accident
that the
pected or unusual, then a finding is
sustained
Ramsey
V.
State
lightning was one ‘arising out of the
employment.'"
County Dist. Ct., 129 Minn. 502, 503,
(2)
153 NW 119, LRA1916A 344.

A driver for an ice company was re-
quired to follow a fixed route in sub-
stantial disregard of weather condi-
to seek
tions, although permitted
shelter in times of necessity. When
a severe rain storm, accompanied by
lightning, was in progress he left his
team and went to a tall tree just
within the lot line, either for pro-

[§ 68] e. Going to and from Work.99 An accident befalling the workman on his way to or from work cannot be held to arise out of the employment, where he has not yet come within, or has left, the sphere of his employment.1 But where the employee is under the control of the employer and on his premises, an injury may arise from his employment, although he is going to or from his work." So where an injury arises out of the character of the way to or from the employment, which is not under the employer's control, it does not arise out of the employment, unless by the conditions of the employment the use of the particular way is obligatory on the employee. Where the employee, without knowledge of the employer, uses a way other than that provided by him, an accident thereon cannot be said to arise out of the employment.5 But an accident due to the employee mistaking the way to his work after coming on the premises of the employer may be held to arise out of the employment."

his

tection or in the performance of his duties soliciting orders. Lightning struck the tree, and the same bolt struck and killed him. It was held that the evidence sustained a finding that the death of the decedent was the result of an accident "arising out of" his employment. State v. Ramsey County Dist. Ct., 129 Minn, 502, 153 NW 119, LRA1916A 344 and note. (3) Where a railroad section man was killed by a stroke of lightning while he was in a barn in which he had taken refuge from a storm at the direction of the foreman, death did not result from an "injury arising out of and in the course of his employment," since there was nothing in his employment that rendered him peculiarly liable to lightning strokes. Klawinski V. Lake Shore, etc., R. Co., 185 Mich. 643, 152 NW 213, LRA1916A 342. (4) Where a workman engaged in building a dam was struck by lightning and killed, his widow's claim for compensation was denied, the court sustaining a finding that the exposure to hazard from lightning stroke at the time and place of injury was not different substantially from that of ordinary out-door work. Hoenig v. Industrial Commn., 159 Wis. 646, 150 NW 996, LRA1916A 339. (5) Where a bricklayer working on a scaffold the twenty-three feet from ground was killed by lightning, it was held that his death arose out of the employment, where there was evidence that his position subjected him to peculiar danger and risk from lightning. Andrew v. Failsworth Industrial Soc., [1904] 2 K. B. 32, 6 WCC 11.

some

(6) Where a workman employed as a road laborer, picking stones and cleaning out gutters along a highway, was killed by lightning during a thunderstorm, the accident was held not to arise out of the employment, there being no evidence that the presence of the workman on the road involved any greater danger than attached to other persons the neighborhood. Kelly v. Kerry County Council, 1 BWCC 194, 42 Ir. L. T. 23.

in

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In the case of seamen returning to their ships the rule has been laid down that, while the return to the ship is in the course of the employment, the risks do not become risks arising out of the employment until the employee has to do something specifically connected with his employment on the ship." Thus, if the risk is something due to the means of access to the ship, the accident may be said to arise out of the employment; but where the risk is due to something which has not been specifically appropriated as a means of access to the ship, but is used in common by the public generally, it cannot be held to arise out of the employment; and this is likewise true where the risk arises from an extraordinary method adopted by the seaman to reach the vessel.1

10

9

[69] f. Injury Incidental to Acts for Personal Comfort or Convenience of Employee. Injuries may arise out of the employment, although sustained while performing acts essential to the personal comthink that, if an accident happened, it did not arise out of decedent's employment").

to frostbite. Karemaker v. Steam-
ship Corsican, 4 BWCC 295. (5) A
workman employed in loading rock
on cars in a quarry for a ten-hour
day, where the temperature was
eighteen degrees below zero, may be
found to have been especially ex-
posed to the danger of frostbite.
Canada Cement Co. v. Pazuk, 22 Que.
Q. B. 432.

99. Arising in course of employ-
ment see infra § 75.

1. Benson v. Lancashire, etc., R. Co.. [1904] 1 K. B. 242, 6 WCC 20: Graham v. Barr, 6 BWCC 412, [1913] S. C. 538; Williams V. Smith, 6 BWCC 102, 108 L. T. Rep. N. S. 200; Kelly v. The Ship Foam Queen, 3 BWCC 113; Watson v. Sherwood, 2 BWCC 462; Nolan v. Porter, 2 BWCC 106; Caton v. Summerlee. etc., Iron etc., Co., 39 Sc. L. Rep. 762; Menard v. Quinlan, 47 Que. Super. 115.

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[a] Illustrations.—(1) Injury to miner walking through entry from place of work to bottom of shaft was held to arise out of employment. Sedlock v. Carr Coal Min., etc., Co., (Kan.) 159 P 9. (2) Where

a

V.

minor, while proceeding above ground to his work, slipped and broke his leg on rails belonging to the mine leading to the doorway of a horizontal passage by which the mine was entered, at a spot distant between nine and thirteen feet from the doorway, the accident arose out of and in the course of the workman's employment. Mackenzie Coltness Iron Co., 6 F. (Ct. Sess.) 8. In re Fumiciello, 219 Mass. 488, 107 NE 349; Hills v. Blair, 182 Mich. 20, 148 NW 243; Steers v. Dunnewald, 85 N. J. L. 449, 89 A 1007; De Constantin v. Public Service Commn., 75 W. Va. 32, 83 SE 88, LRA1916A 329; Holness v. Mackay, [1899] 2 Q. B. 319, 1 WCC 13. See Siemientkowski v. Berwind, White Coal Min. Co., (N. J. Sup.) 92 A 909 (where the court said: "The trial judge found,

3.

as a fact, that the decedent was not
in the usual passageway of eight feet
in width between the tracks of the
Pennsylvania Railroad Company and
defendant's trestle, but was on the
Pennsylvania Railroad track, and
were killed

if the deceased
without voluntary action on his part,
he must have been a trespasser on
railroad company's property. We
are not prepared to go as far as the
trial judge, and say that there is no
proof of an accident, but, in the ab-
sence of evidence that decedent was
forced on the railroad track, we

that, In re McManaman, (Mass.) 113 NE 287. (3) A finding that a baking delivery man was not especially exposed to an injury to his hands has been sustained. Warner v. Couchman, [1912] A. C. 35, 5 BWCC 177 [dism app [1911] 1 K. B. 351, 4 BW CC 32]. (4) A seaman handling ropes has been held not especially exposed

4. In re Sundine, 218 Mass. 1, 105 NE 433, LRA1916A 318; De Constantin v. Public Service Commn., 75 W. Va. 32, 83 SE 88, LRA1916A 329; Richardson v. Morris, 7 BWCC 130; Mole V. Wadworth, 6 BWCC 129. Compare Milwaukee Coke, etc., Co. v. Industrial Commn., 160 Wis. 247, 151 NW 245 (where an engineer on a switch engine was hurt while riding back to the office on the engine after turning it over to another engineer). But see Murray v. Allan, 6 BWCC 215 (where an employee unnecesarily exposed himself to danger).

5. Hendry v. United Collieries, 3 BWCC 567, [1910] S. C. 709; Gibson v. Wilson, 3 F. (Ct. Sess.) 661; Haley v. United Collieries, [1907] S. C. 214. 6. Sneddon V. Greenfield Coal, etc., Co., 3 BWCC 557, [1910] S. C. 362.

7. Webber v. Wansborough Paper Co., [1915] A. C. 51, 7 BWCC 795 rev [1913] 3 K. B. 615, 6 BWCC 583]; Kitchenham v. Steamship JoA. C. 417, 4 hannesburg, [1911] BWCC 311 [aff [1911] 1 K. B. 523, 4 BWCC 91]; Fletcher V. Steamship Duchess, 4 BWCC 317 [aff 3 BWCC 239].

8.

Co., [1915] A. C. 51, 7 BWCC 795 Webber v. Wansborough Paper [rev [1913] 3 K. B. 615, 6 BWCC 583]; Low v. General Steam Fishing Co., [1909] A. C. 523, 2 BWCC 56 [rev 2 BWCC 51, 46 Sc. L. Rep. 55]; Kitchenham v. Steamship Johannesburg, [1911] 1 K. B. 523, 4 BWCC 91 [aff [1911] A. C. 417, 4 BWCC 311]; Kearon v. Kearon, 4 BWCC 435: Moore v. Manchester Liners, 3 BW CC 527 [rev [1909] 1 K. B. 417, 2 BWCC 87]; Canavan v. The Steamship Universal, 3 BWCC 355; Robertson v. Allan, 1 BWCC 172. But see Hundman V. Craig, 4 BWCC 438 (where a sailor fell from a gangway on his way from a personal trip ashore and the accident was held not to arise from employment).

9.

Ocean Acc., etc., Co. v. Industrial Acc. Commn., (Cal.) 159 P 1041; Cook v. Steamship Montreal, 6 BW CC 220, 108 L. T. Rep. N. S. 164; Biggart v. Steamship Minnesota, 5 BWCC 68; Kelly v. The Ship Foam See Mitchell Queen, 3 BWCC 113. v. Steamship Saxon, 5 623 BWCC (where facts were held not to show accident arising out of employment).

[a] Application of this rule has been made.-Where sailor was struck by railroad train while on his way, along the dock side, to his vessel. Biggart v. Steamship Minnesota, 5 BWCC 68..

10. Ocean Acc., etc., Co. v. Industrial Acc. Commn., (Cal.) 159 P 1041; Halvorsen v. Salvesen, 5 BWCC 519, [1912] S. C. 99.

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

11

fort and convenience of the employee,11 as where the employee is injured while going to or from a toilet,12 or while preparing to begin13 or to leave off11 work, or in satisfying his thirst,15 or in obtaining shelter from a storm.16 On the other hand, where an employee is ill, but the illness does not arise from the employment, and is not of an emergent character, an injury resulting from the employee's attempt to minister thereto cannot be said to arise from the employment.17

[70] g. Disobedience of Orders by Fellow Serv

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mitted, and, in our opinion, the fatal accident arose out of his employment"). (2) But it was held that the accident did not arise out of the employment in a case where a seaman on board a ship which was in harbor, in a hot climate, by mistake drank a solution of soda from a tin which he thought contained water, and was badly burned, although it was a practice of the crew to carry water obtained from the ship's pumps in similar tins, and to partake of it as required, the men commonly drinking from other men's tins, and the practice being sanctioned by the officers, but not done by their orders. Hutchison v. McKinnon, [1916] 1 A. C. 471 [rev 8 BWCC 624, [1915] S. C. 867].

11. Zabriskie v. Erie R. Co., 85 N. | the course of his employment, is adJ. L. 157, 88 A 824; Archibald v. Ott, (W. Va.) 87 SE 791; Carinduff v. Gilmore, 7 BWCC 981; May v. Ison, 7 BWCC 148, 110 L. T. Rep. N. S. 525; Sheehy v. Great Southern, etc., R. Co., 6 BWCC 927; Cokolon v. Ship Kentra, 5 BWCC 658; Edmunds v. Ship Peterston, 5 BWCC 157, 28 T. L. R. 18; McLaughlan v. Anderson, 4 BWCC 376, [1911] S. C. 529; Lawless v. Wigan Coal, etc., Co., 1 BWCC 153; Morris v. Lambeth, 8 WCC 1, 22 T. L. R. 22; Elliott v. Rex, 6 WCC 27; Earnshaw v. Lancashire, etc., R. Co., 5 WCC 28. See also American Radiator Co. v. Rogge, 86 N. J. L. 436, 92 A 85, 94 A 85 (recognizing the rule). But see Rose v. Morrison, 4 BWCC 277, 105 L. T. Rep. N. S. 2 (where employee was held to have acted unreasonably in going where he did).

12. Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 A 385, LRA1916A 315 and note. Contra Pearce v. London, etc., R. Co., 2 WCC 152.

13. Klukas v. Thompson, (Alta.) 21 Dom LR 312, 7 WestKkly 1102 [rev on other grounds 24 DomLR 67, 31 WestLR 438, 8 West Wkly 778] (holding that a workman who was injured by the collapse of temporary stairs on which he was proceeding, a few minutes before the hour for commencing his day's work, to another floor, for the purpose of changing into his working clothes left there on the previous day, is entitled to compensation as for an injury arising out of his employment).

14. De Mann v. Hydraulic Engineering Co., (Mich.) 159 NW 380; Terlecki v. Strauss, 85 N. J. L. 454, 89 A 1023.

a

[a] Illustration.-Where girl employee while combing particles of wool from her hair preparatory to going out at noon was injured by her hair catching in the moving machinery, the injury arose out of the employment. Terlecki v. Strauss, 85 N. J. L. 454, 89 A 1023.

15. Archibald v. Ott, (W. Va.) 87 SE 791; Martin v. Lovibond, [1914] 2 K. B. 227, 7 BWCC 243.

[a] Where poisonous fluid was taken by mistake, (1) the injury was held to arise out of the employment. Archibald v. Ott, (W. Va.) 87 SE 791, 793 (where the court said: "Here the unfit, unsatisfactory, or undesirable water supply in the building was one of the generally recognized conditions of the place of service. In consequence thereof all of the workmen supplied themselves from the well by means of buckets and bottles which were left at their respective places of work, and, as may well be supposed, in view of the spirit of comradeship usually prevalent among men working together, it was not unusual for a thirsty workman to take a drink, by tacit permission, from any bucket or bottle that happened to be convenient. Among the bottles in the building there was one that contained a deadly poison having the appearance of water. Its presence there was an incident of the prosecution of the work. It was a substance used therein, and not a thing left on the premises by a stranger, meddler, or miscreant. In the performance of an act attendant upon and incident to all sorts of employment, Archibald, by mistake, drank this fluid for water. That his death was thus accidentally occasioned, in

16. Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620. 17. O'Neil v. Carley Heater Co., 218 N. Y. 414, 113 NE 406.

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[a] Illustration.-Where an ployee of a company engaged in the manufacture and installation of tannery machinery was engaged in the installation of such machinery for another company, and, suffering from illness, was told by an employee of such other company to take some Epsom salts, and was informed where a large quantity of these were stored in the factory, and went to the place indicated, but by mistake took some chloride of barium which almost immediately caused his death, the injury could not be said to arise from the employment. O'Neil v. Carley Heater Co., 218 N. Y. 414, 113 NE 406.

18. Scott v. Payne, 85 N. J. L. 446, 89 A 927. Compare Geary v. Ginzler, 6 BWCC 72, 108 L. T. Rep.

N. S. 286 (where there was evidence tending to show that the machine was started negligently by a coemployee).

19. Pierce v. Boyer-Van Kuran Lumber, etc., Co., 99 Nebr. 321, 324, 156 NW 509, LRA1916D 970; Hulley v. Moosbrugger, 88 N. J. L. 161, 95 A 1007 [rev 87 N. J. L. 103, 93 A 79]; Wrigley v. Wilson, 6 BWCC 90.

"If the workman abandons his employment, even for a short time, and engages in play, or some occupation entirely foreign to his employment, he is not entitled to compensation for an accident by which he is injured while so doing." Pierce Boyer-Van Kuran Lumber, etc., Co.,

V.

supra. 20. Cal. Fishering v. Pillsbury, 172 Cal. 690, 158 P 215; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P 212.

N. J.-Hulley v. Moosbrugger, 88 N. J. L. 161, 95 A 1007 [rev 87 N. J. L. 103, 93 A 79].

N. Y.-De Filippis v. Falkenberg, 170 App. Div. 153, 155 NYS 761.

Wis.-Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 NW 143, LRA1916D 968.

Eng.-Fitzgerald v. Clarke, [1908] 2 K. B. 796, 1 BWCC 197; Wilson v. Laing, 2 BWCC 118; London, etc.. Engineering, etc., Co. v. Falconer, 38 Sc. L. Rep. 381. But see Clayton v. Hardwick Colliery Co., 85 L. J. K. B. 292 [app allowed 7 BWCC 643, 111 L. T. Rep. N. S. 788] (where the question of whether an injury arose out of the employment was held to be one of fact concerning which the decision of the trial judge would not be in

terfered with, in a case where boys employed in picking stones from coal were shown occasionally to have thrown stones at one another, although the practice was prohibited, and the applicant was allowed compensation for an injury from being struck by a stone so thrown by a fellow employee).

But see Knopp v. American Car, etc., Co., 186 111. A. 605 (where compensation was allowed to an employee who attempted to knock a can from the lower die of a trip hammer where it had been placed by another workman as a prank).

[a] Effect of custom.-Where an employee was caused to fall down stairs by the act of a coemployee in tickling him, the court said: "That the act of his fellow-servant was but momentary and without malice and not in excess of the usual intercourse between servants makes no difference. Suppose the fellow-employee had tripped him up, intentionally but playfully, would anyone contend that the employer was liable because his servants (perhaps entirely without his knowledge) had established a custom of tripping one another? We cannot see how this assault differed from any other. Flint was hyper-aesthetic, in that he was peculiarly sensitive to tickling. This was known to his associates. His fellow-servant, who tickled him as he was going down a stairway carrying a bucket in his hand, may have been an amiable person who merely intended a bit of rough play, but, unless he was an idiot, he must have seen that such a prank was attended with some danger. If his sense of proportion had been even more distorted and he had pushed Flint down the stairs in the joyous hope of seeing the latter sprawl humorously on the floor below, no one would contend that the accident occurred in the course of the employment of the injured man. We cannot see that it is our duty to measure the dynamics of assaults and to hold that the master must be charged with foreseeing and insuring against those which are playfully intended and which may be sanctioned by a custom existing among his servants." Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 685, 158 P 212. [b] Illustrations.-(1) Where claimant employee went to a toilet room and there felt something strike her on the shoulder, whereupon she looked through an aperture into the next room and another employee thrust scissors through the aperture and into claimant's eye destroying the sight, the injury does not arise out of the employment, not being reasonably incidental to it, nor a peril in the service. De Filippis v. Falkenberg, 170 App. Div. 153, 154, 155 NYS 761 (where the court said: "The injury resulted solely from the sportive act of a coworker who was in no way representing the master, and which act in no way grew out of or was connected with the employment. A test spoken of in the case of Plumb v. Cobden Flour Mills Co., [1914] A. C. 62, 7 BWCC 1, as a sound and convenient test in determining whether the injury arose out of the employment is whether it is in the scope or sphere of the employment. The injury in the case at bar was not a peril of the service, nor

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workman, whether in anger or in play, an injury so sustained does not arise "out of the employment,' and the employee is not entitled to compensation therefor,21 unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.22 However, the view has been taken that, when the employee is injured by a coemployee in an altercation over the manner of working together, the accident arose out of the employment,23 although it is

was it reasonably incidental to the employment. It was not an assault which had its origin in the nature of the employment, nor was in any way whatever connected with the master's work "). (2) An employee, the sight of whose eye was destroyed by a missile from a trick camera directed toward him by a fellow employee in sport, is not entitled to compensation. Fishering v. Pillsbury, 172 Cal. 690, 158 P 215. (3) Where an employee who was peculiarly susceptible to being tickled was going down a flight of stairs with a filled bucket and one of his associates punched him in the back with a newspaper causing him to make a sudden movement and to fall, injuring one knee seriously, his injury was in the course of, but did not arise out of, his employment. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P 212. (4) It was held that compensation would not be awarded where "decedent was doing a plumbing job for his master in a dwellinghouse, the completion of which job required some fittings that were contained in a bin in his employer's shop. At five o'clock in the after

noon

the decedent quit work and went to his employer's shop, and, while on his way to the bin for the fittings to be used on the job in which he was engaged, a fellow-workman, in a spirit of play, whom the deceased was passing, swung his arm around, either to knock off decedent's hat or to strike him, whereupon the decedent. in dodging the attack. slipped on the descending concrete floor.

fell, and sustained injuries which caused his death." Hulley v. Moosbrugger. 88 N. J. L. 161, 162, 168. 95 A 1007 [rev 87 N. J. L. 103, 93 A 79] (the court also saying: "In the opinion of the Supreme Court it is stated that it was a negligent act of the fellow-workman to make a pass at the decedent. This, too, we think is erroneous. It is true that negligence is either the omission to do something which a reasonable man, guided by circumstances which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do (Bouv. Law Dic. (Rawle's rev.) 748), yet, when negligence arises out of an act of commission by one for whose conduct another is responsible, it must be with reference to some duty which the responsible person owed to the party injured"). (5) Where a servant whose duties did not include using a compressed air hose was injured when a fellow servant, in cleaning his clothes after work inserted the hose into his rectum and ruptured his intestines. the injury did not result from a causative danger of his employment, and he was not entitled to compensation under St. (1915) § 2394-3 subd 2, providing for compensation of workmen for injuries arising out of or incidental to their employment. Federal Rubber Mfg. Co. v. Hayolic, 162 Wis. 341, 156 NW 143, LRA1916D 968.

21. Pierce V. Boyer-Van Kuran Lumber, etc.. Co., 99 Nebr. 321. 156 NW 509, LRA1916D 970; Hulley v. Moosbrugger, 88 N. J. L. 161. 95 A 1007 Trev 87 N. J. L. 103, 93 A 791: Armitage v. Lancashire, etc.. R. Co.. [1902] 2 K. B. 178, 4 WCC 5: Bateman v. Albion Combing Co., 7 BWCC 47; Baird v. Burley, 1 BWCC 7, 45

further said that such cases necessarily present close questions of fact.24

[72] 3. In Course of Employment-a. In General. It has been said that in general terms an injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.25 Hence the disobedience of a specific

Sc. L. Rep. 416: Doyle v. Moirs, 48 N. S. 473, 22 DomLR 767. But see McIntyre v. Rodger, 41 Sc. L. Rep. 107 (where compensation was allowed where a fellow workman pulled a brush from the hand of an employee and caused injury).

22. In re McNicol, 215 Mass. 497. 102 NE 697, LRA1916A 306 and note. Compare Clayton v, Hardwick Colliery Co., 85 L. J. K. B. 292 [rev 7 BWCC 643, 111 L. T. Rep. N. S. 788] (where mischievous proclivities of young boys employed were apparently regarded as a risk arising out of employment).

in

Mc[a] Illustration.—“Stuart Nicol, while in the performance of his duty at the Hoosac Tunnel Docks as a checker in the employ of a firm of importers, was injured and died as a result of blows or kicks administered to him by who was Timothy McCarthy.' 'an intoxicated frenzy and passion.' McCarthy was a fellow workman who 'was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employees, all of which was known to the superintendent Mathews,' who knowingly permitted him in such condition to continue at work during the day of the fatality

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which occurred in the afternoon. The injury came while the deceased was doing the work for which he was hired. It was due to the act of an obviously intoxicated fellow man, whose quarrelsome disposition and inebriate condition were wellknown to the foreman of the ployer. A natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his panion. The case at bar is quite distinguishable from a stabbing by a drunken stranger, a felonious attack by a sober fellow workman, or even rough sport or horseplay by companions who might have been expected to be at work. Although it may be that, upon the facts here disclosed, a liability on the part of the employer for negligence at common law or under the employers' liability act might have arisen, this decision does not rest upon that ground, but upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work." In re McNicol, 215 Mass. 497, 500, 102 NE 697, LRA1916A 306.

23. Heitz v. Ruppert, 218 N. Y. 148, 112 NE 750.

[a] Illustration.- An award was sustained where the evidence was held "sufficient to permit the commission to find that the following facts sought to be proved were established: that it was an obligation of claimant's employment to take care of the horses which he drove and to see that they were not injured by injudicious wetting or otherwise by his fellow-workmen: that in the course of their employment-while the two men were at work a quarrel or argument over the wetting of the horses arose and personal injury grew out of the physical contact resulting from the quarrel, and that. therefore, the accident (a) arose out of and (b) in the course of employment.' Heitz v. Ruppert, 218 N. Y. 148, 153, 112 NE 750.

24. Heitz v. Ruppert, 218 N. Y.

148, 112 NE 750.

25. Larke v. John Hancock Mut. L. Ins. Co., (Conn.) 97 A 320; Gonyea v. Canadian Pac. R. Co., (Sask.) 7 BWCC 1041 [aff 7 BWCC 1029]. See also as recognizing various elements of the rule stated in the text W. R. Rideout Co. v. Pillsbury, (Cal.) 159 P 435; Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368; In re Sanderson, (Mass.) 113 NE 355; In re McPhee, 222 Mass. 1, 109 NE 633; Mahowald v. Thompson-Starrett_Co., (Minn.) 158 NW 913; Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 A 859. LRA1916A 10. AnnCas1914D 1280 and note; Walther v. American Paper Co., (N. J. Sup.) 98 A 264: Allen v. Millville, 87 N. J. L. 356, 95 A 130; Bryant v. Fissell, 84 N. J. L. 72, 86 A 458; Risdale v. Steamship Kilmarnock, [1915] 1 K. B. 503, 8 BWCC 7; Pepper v. Sayer, [1914] 3 K. B. 994, 7 BWCC 616; Aitken v. Finlayson, BWCC 918, [1914] S. C. 770; Anderson v. Fife Coal Co., 3 BWCC 539, [1910] S. C. 8; Lasturka v. Grand Trunk Pac. R. Co., (Alta.) 7 BWCC 1031; Kennedy v. Grand Trunk Pac. R. Co., (Sask.) 7 BWCC 1046. the

'in "An injury is received course of the employment when it comes while the workman is doing the duty which he is employed to perform." In re McNicol, 215 Mass. 497, 498, 102 NE 697. LRA1916A 306 [quot Mann v. Glastonbury Knitting Co., (Conn.) 96 A 368].

[a] Injuries held to have been in course of employment.-(1) Where the deceased was struck by a train after he had given certain waybills, in pursuance of his duty, to the train agent. Muzik v. Erie R. Co., 89 N. J. L. 129, 89 A 248. (2) Where the deceased had gone to his foreman in search of material and was injured while on the trip. De Fazio v. Goldschmidt Detinning Co., (N. J. Sup.) 88 A 705. (3) Where a servant operating a crane jumped into a river when one of the timbers of the crane broke, to save himself from being hurt. Rist v. Larkin, 171 App. Div. 71, 156 NYS 875. (4) Where an employee had come to his work on a motor cycle which was owned by himself and which he had used for going to and from jobs with the knowledge and consent of his employer, but for the use of which he was not paid extra, and had placed the motor cycle against a tree on the property adjoining the premises of his employer, and started to clean the clutch so that the machine might be in proper working order for the day, and was injured. Kingsley v. Donovan, 169 App. Div. 828, 155 NYS 801. (5) Injury to a helper on an automobile truck used as a delivery wagon by his employers who were wholesale grocers, due to a fall on jumping from the truck to drive away mischievous boys. Hendricks v. Seeman Bros., 170 App. Div. 133, 155 NYS 638. (6) Death by drowning of an employee ordered to keep trespassers off central part of pond, due to breaking ice. Jillson v. Ross, (R. I.) 94 A 717. (7) Death of night watchman from assault with purpose of robbing him. Walther v. American Paper Co., (N. J. Sup.) 98 A 264. (8) Injury to carpenter in attempting to turn on electric current for the purpose of putting in motion a grindstone on which he intended to sharpen his chisel. Wendt v. Indus

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