APPELLATE COURT OF INDIANA. FT. WAYNE, ROLLING MILL CORPORATION V. BUANNO ET AL. (No. 10450.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -CAUSE OF DEATH-EVIDENCE. In proceeding under the Workmen's Compensation Act for compensation. evidence held sufficient to sustain a finding that injury to arm was cause of pneumonia, which resulted in death. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Appeal from Industrial Board. Proceedings by Vingenza Buanno and others under the Workmen's Compensation Act, to obtain compensation for the death of Pasqualle Buanno, opposed by the Ft. Wayne Rolling Mill Corporation, the employer. There was an award, and the employer appeals. Affirmed Joseph W. Hutchinson, of Indianapolis, for appellant. REMY, J. The findings of the Industrial Board which are material in determining the question presented are: That on November 28, 1917, Pasqualle Buanno. while in the employ of appellant, received a personal injury by accident arising out of and in the course of his employment, of whch appellant had actual knowledge, and filed report thereof to the board on December 19, 1917; that on February 28, 1918, said Buanno and appellant entered into a compensation agreement, which later was aproved by the board, whereby appellant agreed to pay compensation on account of said injury at the rate of $8.77 per week during the period of disability resulting therefrom, not exceeding 500 weeks, beginning December 8, 1917; that pursuant to such agreement appellant paid 14 successive weeks' compensation; that on April 12, 1918, said Buanno died as a result of his injuries, and left surviving him, as his sole and only 'dependents, the appellees herein. On this finding, the board awarded appellees compensation for 286 weeks at the rate of $8.77 per week, beginning April 12, 1918, and ordered that appellant pay funeral expenses not to exceed $100. The sole question presented on ths appeal is whether the evidence is sufficient to sustain the finding that the death of Pasqualle Buanno was the result of the injuries received November 28, 1917. I is contended by appellant that the undisputed evidence shows the proximate cause of the death of said Buanno to have been pneumonia, and not the accident, and that the question of proximate cause is therefore a question of law. On this phase of the case the uncontradicted testimony of the attending physician is that on April 8, 1918, the wound resulting from Buanno's injury had not fully healed, there being at that time an open sore on the arm about an inch square, which became infected with erysipelas, causing the arm to become swollen to twice its normal size, and that this infection spread "over his neck to the side of his face, and finally developed into streptococal pneumonia." The attending physician also testified that: *Decision rendered, Mar. 5, 1919. 122 N. E. Rep. 362. "There was no mistake in the diagnosis of the infection on the arm. It was erysipelas. There could be no such infection without some exterior brasure of the skin. There would have to be some point of entry. In my opinion the primary cause of this infection was the unhealed portion of his injury. It is rather common for pneumonia to follow such infection." It is our opinion that the evidence fully sustains the finding that Pasqualle Buanno died as a result of the injury he received on November 28, 1917. The award is affirmed, and, as provided by section 61 of the Workmen's Compensation Act (Acts 1915, c. 106), as amended by the act of 1917 (Acts 1917, p. 155), said award is increased by 5 per cent. APPELLATE COURT OF INDIANA. DIVISION No. 2. PERU BASKET CO. V. KUNTZ. (No. 10454.)* 1 1. MASTER AND SERVANT COMPENSATION INJURIES ARISING OUT OF EMPLOYMENT-DISOBEDIENČE TO INSTRUCTIONS. That a workman at the time he receives an injury is acting in violation of directions does not preclude the injury from arising out of the employment in view of Workmen's Compensation Act, § 8. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) 2. MASTER AND SERVANT-WORKMEN'S -WILFUL DISOBEDIENCE. COMPENSATION Where an employee with defective eyesight lost part of his hand in a cutting machine, where he had inadvertently placed it contrary to directions by his employer, evidence held to sustain a finding that the injury was not the result of a willful disobedience. (For other cases, see Master and Servant, Dec. Dig. § 405[1].) Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act by Charles W. Kuntz, to recover compensation for personal injuries, opposed by the Peru Basket Company, employer. Compensation was awarded by the Industrial Board, and the employer appeals. Affirmed. Joseph W. Hutchinson, of Indianapolis, for appellani. DAUSMAN, C. J. Appellee filed his application for an award of compensation. Appellant filed answer in denial. and also a special answer, in which it alleged willful misconduct. The following is a portion of the finding of facts: * Decision rendered, March 6, 1919. 122 N. E. Rep.. 349. "And the full board heard the argument of defendant's counsel, and, having reviewed the evidence and being duly advised in the premises, finds that on the 26th day of February, 1918, plaintiff was in the employment of the defendant at an average weekly wage of $9.62-; that at said time the plaintiff was employed as an off-bearer upon a chopping machine, which is a machine with a blade 78 inches long and was being used for the purpose of cutting timber into small strips for basket rims; that when the strips were cut off by the knife they dropped into a rack, and when sufficient strips had dropped into the rack to make a bundle, it was the duty of the plaintiff to lift them out and bind them by wire; that on the day of the injury and prior thereto the plaintiff's eyesight was defective as a result of a stroke of paralysis, the muscles controlling his eyeballs being paralyzed and the eyeballs remaining stationary and not moving; that the defendant had full knowledge of the condition of the plaintiff's eyesight on the date of the injury and prior thereto; that the knife with which said strips are cut from the timber is guarded by a board, and the defendant by a proper representative had instructed the plaintiff not to place his hands near the knife in removing the strips from the rack; that immediately prior to the accident the chopping machine was not in motion. and was not in motion at the time the plaintiff put his hand in to take out the bundle of strips; that while the plaintiff was in the act of removing the bundle the operator of the chopping machine started the same, and because of the plaintiff's defective eyesight the plaintiff inadvertently placed his left hand under the board guard, and the knife caught and severed one-half of the distal phalanx of the index finger and the whole of the first phalanx of the second, third, and fourth fingers; that the plaintiff had some infection of the wound; that said injury has resulted in such permanent partial impairment of the plaintiff's left hand as will entitle him to 60 weeeks' compensation; that the plaintiff did not willfully, deliberately, or intentionally place his hand too near the knife of the chopping machine, but he did do so unintentionally, inadvertently, and because of his defective eyesight." [1] Appellant contends: (1) That the injury did not arise out of the employment, because of the workman's failure to obey instructions; and (2) that the workman's failure to obey instructions amounts to willful misconduct. The first contention cannot be sustained. The fact that a workman, at the time he receives an injury, is acting in violation of directions given him by his employer does not preclude the injury from arising out of the employment. The effect of a failure to obey instructions must be considered under section 8 of the Workmen's Compensation Act (Laws 1915, c. 106). National Car Coupler Co. v. Marr. 121 N. E. 545; Great Lakes, etc., v. Cellatto (Jan. 1919) 122 N. E. [2] The second contention presents a question of fact, viz.; Was the workman's failure to follow the direction given him a willful disobedience? There is no conflict in the evidence. The workman was directed by appellant's superintendent never to put his hands under the guard and then upward (back of the guard) above a certain point. With that direction the workman failed to comply, and thereby received his injury. In explanation of his conduct the workman testified: "I was off-bearing, and was getting down some No. 2 basket rims to tie into a bundle. I got my hand a little bit too high and got it into the knife. The machine was standing still; but the man who operated it pulled the lever and started it The superintendent had pointed out to me a certain point above which I was not to put my hand. When the strips are cut by the knife they drop down. But there is a little ledge at the side of the knife, and sometimes they stop there and don't fall down. At the time I was hurt I was reaching to get the strips from the ledge. I had a paralytic stroke two years ago, and I can't move the eyeballs I reached too high by misjudging the distance. On account of the condition of my eyes I see double objects. When the machine was not in operation it was impossible for me to get my hand under the knife. The superintendent did not instruct me not to reach up there when the machine was not in operation." Appellant's superintendent testified that he knew when he employed appellee that his eyes were "set," that the accident could have resulted from bad eyesight, the workman being nearer the machine than he thought, and that he did not think that the workman willfully put his hand up under the knife. The evidence tends fairly to sustain the finding throughout. The award is affirmed; and, by virtue of the statute, the amount thereof is increased 5 per cent. SUPREME COURT OF KANSAS. BENSON BUSH. (No. 21883.) * 1. COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT-“IN TERSTATE COMMERCE." The plaintiff, as station agent of the defendant, was not, while attemping to start a fire in the depot stove, engaged in "interstate commerce." (For other cases, see Commerce, Dec. Dig. § 27[5].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DANGER WITHIN EMPLOYMENT. His attempt to start a fire by the use of kerosene, which he supposed was signal oil, did not thereby add to his employment any peril outside thereof. (For other cases, see Master and Servant, Dec. Dig. § 373.) 3. MASTER AND SERVANT-INJURY TO SERVANT-"ARISING OUT OF AND IN COURSE OF EMPLOYMENT." The injury arose out of and in the course of his employment within the meaning of the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942). (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) (Additional Syllabus by Editorial Staff.) 4. COMMERCE-EMPLOYMENT IN "INTERSTATE COMMERCE." For a railroad employee to come under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) it must appear that the injury was incurred while he himself was employed in interstate commerce; that his * Decision rendered, Feb. 14, 1919. 178 Pac. Rep. 747. Syllabus by the Court. work at the time must have had a real and substantial connection with interstate commerce. (For other cases, see Commerce, Dec. Dig. § 27[5].) Appeal from District Court, Sedgwick County. Action under the Workmen's Compensation Act by C. H. Benson against B. F. Bush, receiver of the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. W. P. Waggener, of Atchison, O. H. Bentley, of Wichita, and G. L. De Lacy and W. E. Brown, both of Atchison, for appellant. Adams & Adams and S. S. Hawks, all of Wichita, for appellee. WEST, J. The defendant appeals from a judgment in favor of the plaintiff for injuries caused by burns received in attempting to start a fire in the depot where the plaintiff was employed. The action was under the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942). At the station of Ray, in Pawnee county, the plaintiff began work as agent, and in trying to start a fire with what he supposed was signal oil, which turned out to be kerosene, he was burned. The answer alleged that, if the plaintiff was injured, it was not by reason of any accident arising out of and in the course of his employment, but was due to the explosion of a can of kerosene which he himself poured upon live coals, and that he was injured because of the new and added peril caused thereby, to which he caressly exposed himself, and that the act was outside of his employment. It was further alleged that the injury occurred while the plaintiff was employed by the defendant in interstate commerce, and that his remedy, if any, was under the federal Employers' Liability Act, of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. $$ 8657-8665]). The court instructed that the injury was an accident that occurred in the course of plaintiff's employment, but that it remained for them to determine whether it arose out of the employment, which they were told meant that the accident was in some sense due to the employment and resulted from an accident or risk reasonably incident to that employment, and a risk which might have been contemplated by a reasonable person entering the employment, as incidental to it; that, if the injury. was due to an act of the plaintiff which added a new or additional risk to his employment, he could not recover. The jury were also instructed that the question of whether the plaintiff and defendant were engaged in interstate commerce as a defense was not before them for their consideration. They answered special questions to the effect that the plaintiff was not injured by pouring kerosene on the fire or on live coals; that the explosion was cased by fire from a lighted match coming in contact with explosive matter; that the liquid in the can which the plaintiff poured in the stove was kerosene; that a former agent furnished the kerosene; that the defendant had a rule forbidding its use in starting fires in stations, which rule was in the station at Ray, but the plaintiff did not know of its existence before his injury; that the defendant checked to the plaintiff as agent the cans in the depot, the contents of one of which was afterwards used by him in attempting to light the fire. [1, 4] The defendant argues that, as Ray was a station on an interstate line of railroad where the duty of the agent was to sell tickets to points in and out of the state and to handle state and interstate freight, he was engaged in interstate commerce; that his injury did not arise out of it and in the course of his employment, but from the new and added peril caused by the method he himself chose to do his work; that when the defendant had provided kerosene for lights and made a rule prohibit |