was under the common-law system-but directly by the industry itself and indirectly by the public, just as is the deterioration of the buildings, machinery and other appliances necessary to enable the employer to carry on the particular industry." Among the illustrative cases cited by Bradbury, at pages 589, 590, we find the following: "A newspaper reporter was directed by his employer to get the first copy of the newspaper off the press to see if the makeup was correct He was forcibly resisted by the pressman, the reporter repeatedly and properly attempting to do as he was instructed. When about to report the matter to his superior, the reporter was unexpectedly and without other provocation assaulted. It was held that this was an accidental injury arising out of the employment. (Brown v. Berkely Daily Gazette, 2 Cal. Ind. Acc. Com. 32 [841].) "Two workmen had an altercation in which the one who finally committed the assault was the aggressor and the employer observing it, told them they would both be discharged unless they desisted. A little later the workman who had originally been the aggressor approached from behind the other workman and struck him on the head with such force that he afterwards died. It was held that the accident arose out of the employment. (McNiel v. Mountain Ice Co., 38 N. J. Law J. 109, 11 N. C. C. A. 238.) "A driver told a fellow workman in a stable that he was using too much water on a horse, when the workman intentionally sprinkled some water on the driver, who was the claimant. The claimant a moment later spoke to the fellow workman, who slapped the claimant on the shoulder, and as the claimant turned around a finger of the fellow workman struck the claimant in the eye causing injuries by which he lost the sight of the eye. It was held that there was sufficient evidence to sustain a finding that the injury arose out of the employment. (Heintz v. Ruppert, 218 N. Y. 148, 112. N. E. 750, [L. R. A. 1917A, 344].)" Numerous other cases are noted, but we will not cumber this opinion further by their quotation. In its final order the board says: "It must be remembered that Mr. Brooks was night foreman, having charge of the property and employees of the Pilot Butte mine, at the time of the accident, and that he stands in the position of the employer. What he knew and did was really what the employer knew and did. In support of this view is the case of Kinsel v. North Butte Mining Co., 44 Mont. 445, 120 Pac. 797. Part of the opinion in point on this question is as follows: 'The evident purpose was to show that Wells was a vice principal. He was engaged in performing a primary absolute and unassignable duty of the master. *** This fact in itself takes him out of the category of fellow servants and makes him a vice principal. * His negligent act was that of the master itself.'" There seems to be some authority for an additional exception to the rule that ordinarily assault cases do not form the basis for an award when there is a difference in rank between the employee assaulted and the assaulting employee. Thus in the case of Metropolitan Redwood Co. v. Industrial Accident Board (Cal. App.) 182 Pac. 315, after stating the general rule, the court continues: "A second exception is also noted in the cases cited which arises * where the injured employee was the superior in rank to the one causing his injuries. the assault arising out of an attempted exercise of discipline on the part of the superior employee." It would seem that. if such a case constitutes an exception to the rule, the converse would also be true, and an exception would exist where, under like conditions, injury resulted to the employee sought to be disciplined. A case similar to that just noted is Polar Ice Co. v. Mulray (Ind. App.) 119 N. E. 149, where the facts were that Mulray was a bookkeeper charged with the duty of keeping a record of outgoing merchandise and the returns made by the drivers, and collecting for shortage; a driver, being angered over an attempted collection, caused trouble in the office, when Mulray drove him off with a revolver, shooting several times over his head; the driver returned armed and killed Mulray. The court in closing its opinion said: "While it may be said that the inference that the unfortunate accident in the case was the result of a risk reasonably incident to Mulray's employment, and therefore arose out of his employment, it is not the only inference which might be drawn from the evidence, yet it is a very reasonable one, and since the Industrial Board has so concluded, we are required to uphold the award." [4] Here the inference might be drawn that the trouble between Willis and Brooks arose on account of a feeling of enmity between Willis toward Brooks by reason of the discharge of Shannon, or a feeling that Brooks was attempting to seek excuse for his discharge; or it might be inferred, as it was by the board, that Brooks was the aggressor in the affray because of his anger toward Willis for carrying him to the surface when he did not want to go above the 2,400-foot level, and that what took place thereafter was all a part of the same transaction, resulting finally in the death of Willis, as a result of, and arising out of, his employment. Assuming that such were the facts, under the authorities and sound reasoning, his widow should be awarded compensation for herself and child; and the board having so found, which finding was declared by the district court, on review, to be reasonable, we are of the opinion that the judgment of the district court should be affirmed. Affirmed. Holloway, Hurly, and Cooper, JJ., concur. Brantly, C. J., being absent, takes no part in the foregoing decision. FARMERS' GRAIN & SUPPLY CO. OF MINDEN v. BLANCHARD. (No. 21467.). (Supreme Court of Nebraska. June 7, 1920.) 178 Northwestern Reporter, 257. (Syllabus by the Court.) 2. MASTER AND SERVANT-"RECKLESS INDIFFERENCE TO SAFETY," WITHIN COMPENSATION ACT DEFINED. "Reckless indifference to safety" as used in section 3693, Rev. St. 1913 (Workmen's Compensation Act), means more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in degree, a willingness to take a chance. (For other cases, see Master and Servant. Dec. Dig. § 380.) Appeal from District Court, Kearney County; Dilworth, Judge. From an award of compensation by the compensation commissioner to Jennie M. Blanchard for the death of her husband while employed by the Farmers' Grain & Supply Company of Minden, it appealed to the district court. From its judgment setting the award aside and dismissing the claim, claimant appeals. Reversed and remanded to affirm the award of the compensation commissioner. Bernard McNeny and Howard S. Foe, both of Red Cloud, for appellant. Lewis C. Paulson, of Minden, for appellee. LETTON, J. The appellant was awarded compensation by the compensation commissioner for the death of her husband while employed by the appellee. On appeal to the district court the award was set aside and judgment of dismissal rendered. Claimant appeals. The husband of the appellant, on June 30, was manager of the grain elevator of appellee at Minden. The bookkeeper, whose duty it was to attend to the correspondence and make out reports, was absent from the town for a few days. A report had been called for by the United States Grain Corporation, which, according to a letter accompanying the same, was due in Omaha the next day. The post office in Minden was about six blocks from the elevator, and the elevator was about two blocks from the railroad station. The deceased procured assistance in making out the report from the manager of a neary elevator, placed it in an envelope, and, when the accident happened, was proceeding to the railroad station in order to post the letter upon the mail car of a train coming from the west. There are three parallel tracks at Minden, the elevator track, the passing track, and the main track. The evidence shows that deceased crossed the elevator and passing tracks. He looked west, and presumably saw the train approaching. An eyewitness testifies that he then proceeded between the main and passing tracks in the direction of the station at a rapid walk or dog trot, was struck by the engine of the train, and thrown about 20 feet. The train, according to this witness, was running faster than usual. The space between the tracks was about 10 or 12 feet, and, so far as this witness could see, deceased had not veered toward the main track when he was struck. The fireman on the train, however, testifies that he saw the deceased cross the tracks, and saw him running between the main line and the passing track; that at one point he took a very slight angle toward the main track, and had reached about the end of the tie when he was struck, presumably by the pilot beam of the engine. · The district court made a general finding that appellant was not entitled to compensation, but from the briefs it would appear that the court found that death was caused by an accident which did not arise out of and in the course of Blanchard's employment, or that the accident was caused by his wilflul negligence. The preparation of the report to the grain corporation was one of the duties which devolved upon Blanchard when the bookkeeper was absent, and the fact that the post office was six blocks distant from the elevator while the station was only two blocks away, and that he was alone in the elevator, showed that he desired to spend as little time as possible away from his main post of duty. We are satisfied that the accident arose out of and in the course of his employment. The fact that the bookkeeper always mailed letters at the post office when he attended to the correspondence is not material. [1, 2] The other question presented is whether the accident was caused by the willful negligence of the deceased. Willful negligence is defined in the statute as follows: "For the purpose of this act willful negligence shall consist of (1) deliberate act, or (2) such conduct as evidences reckless indifference to safety, or (3) intoxication at the time of injury, such intoxication being without the consent or knowledge or acquiescence of the employer or the employer's agent." Section 3693, Rev. St. 1913, as amended by chapter 85, Laws 1917. The deceased was 66 years of age. He had been moving rapidly, one witness saying it was a fast walk, or trot; another called it a run. He suddenly swerved toward the main track at or near a switch. Whether he made a misstep, whether his progress was interfered with by means of the switch, or whether from the exertion or from some other cause he became dizzy and swerved toward the train it is impossible to determine. There is nothing in the record which would indicate that his domestic relations were unpleasant, that he was worried or depressed on account of other trouble, or that would in any wise indicate that he contemplated self-destruction. The presumption of law is against such a conclusion. "When violent death is shown, the presumption arises that it was not self-inflicted. As between accident and suicide, the law supposes accident until the contrary is shown." State ex rel. Oliver Iron Mining Co. v. District Court of St. Louis County, 138 Minn. 138, 164 N. W. 582; Wishcaless v. Hammond, Standish & Co., 201 Mich. 192, 166 N. W. 993. Does the testimony show "such conduct as evidences reckless indifference to safety?" There were 10 or 12 feet of space between the tracks, which to an ordinary mind would indicate there was plenty of room for a person to travel safely in the same direction as the train. While there is no doubt that it was careless to attempt to move rapidly, side by side with a rapidly moving train in the narrow space between the tracks, we think it does not necessarily show "reckless indifference to saiety." In Webster's Dictionary "reckless" is defined as "rashly negligent; utterly careless or heedless." The word "reckless" has been defined by courts many times. The definitions do not always agree, some saying that a reckless act is the equivalent of a willful one, while others say the word does not imply willful, but merely heedless, careless, rash, indifferent to consequences. "Reckless indifference to safety" as used in the statute means more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating in degree, a willingness to take a chance. We may well conclude that deceased believed there was ample space between the tracks in which he might move with safety. An error of judgment of this kind would not evidence recklessness, and while a prudent and careful man might have stepped away, the true test is not what such a man would have done under the circumstances, but whether the act was in itself more than merely careless, and was within the statutory definition of willful negligence. Since the divergence from the middle of the space between the tracks may have resulted from several different causes, we think the evidence does not sustain a conclusion that the accident was the result of "willful negligence" as defined in the statute The judgment of the district court is reversed, and the cause remanded, with directions to affirm the award of the compensation commissioner. Reversed and remanded, with directions. it MURRAY v. UNION RY. CO. OF NEW YORK CITY. (Court of Appeals of New York. June 1, 1920.) 127 Northeastern Reporter 907. 1. MASTER AND SERVANT "SPECIAL EMPLOYEE" DEFINED. An employee may be in the general employment of one master and the special employment of another, but does not become a "special employee" of the latter, unless he consents thereto, with the understanding that he is submitting himself to control of a new master. (For other cases, see Master and Servant, Dec. Dig. § 361.) 2. MASTER AND SERVANT DETECTIVE BUREAU'S RAILWAY'S EMPLOYEE, GUARDING CARS, HELD NOT "SPECIAL EMPLOYEE," WITHIN COMPENSATION LAW. Where a detective bureau had a contract with a railroad during strike to furnish guards to protect passengers on cars, an employee of the bureau, injured in collision while serving as guard, without knowledge as to whether he was in the employ of the railroad or merely an employee of the bureau, was not a special employee of the railroad, within Workmen's Compensation Law, so as to prevent him from resorting to a common-law action against the railroad for negligence. (For other cases, see Master and Servant, Dec. Dig. § 361.) Appeal from Supreme Court, Appellate Division, Second Department. Action by George J. Murray against the Union Railway Company of New York City. From a judgment of the Appellate Division (183 App. Div. 209, 170 N. Y. Supp. 601), reversing a judgment of the Trial Term, entered on a verdict for plaintiff, and dismissing complaint, plaintiff appeals. Judgment of Appellate Division reversed and judgment of Trial Term affirmed. Henry M. Dater, of Brooklyn, for appellant. Alfred T. Davison, of New York City, for respondent. CARDOZO, J. In July, 1916, there was a strike of motormen and conductors on the street railroad operated by the defendant in the city of New York. The Washington Detective Bureau undertook to furnish other motormen and conductors, and also guards or watchmen to protect the passengers and cars from violence. One of the guards was the plaintiff. He was injured in a collision as the result of the defendant's negligence. The question is whether his relation to the defendant at the time of the collision was that of an employee to an employer, either general or special. Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992. Matter of Schweitzer v. Thompson & Norris Co., 127 N. E. 904 (decided June 1, 1920). If it was, the remedy under the Workmen's Compensation Law (Consol. Laws, c. 67), is exclusive of every other. If it was not, the common-law remedy for negligence survives. The plaintiff had a verdict at Trial Term. The Appellate Division reversed and dismissed the complaint. Beyond doubt, the detective bureau was the plaintiff's general employer. Matter of De Noyer v. Cavanaugh, supra. It hired him and paid him, and had the power to discharge him. He was not told by the men who hired him of the nature of the arrangement between the bureau and the railroad. All that he was told was that they were sending him to guard cars, just as they had sent him on other occasions to guard factories |