August 2 as he was to door of hearing room. When he last saw Mr. McCarthy, he was shoveling onto the truck accompanied by five or six other men. It took about one-half hour to fill a truck. When the truck is filled, it is taken out to the street workers using the steam roller. He saw Mr. McCarthy when he went after the drink of water, having passed him on the way. Mr. McCarthy came back past him and was staggering. The men got to Mr. McCarthy before he fell and took him to the shed where he was attended by the doctor. He did not notice Mr. McCarthy particularly when he started after the water. They had worked pretty` steadily that morning, having started about 7 o'clock and continui to 11 o'clock. They worked continuously in the sun. Everybody stopped at 11 and went home. Mr. McCarthy went about 20 feet from where he was standing, and was retracing that 20 feet when he saw him staggering. It was probably two or three minutes from the time he passed him to go to the water until he came back.

Cross-examined, the witness testified:

That Mr. McMCarthy was working about 15 or 20 feet away from him and the water was about 20 or 30 feet away from Mr. McCarthy the other way. The men stayed with Mr. McCarthy until the doctor took him away and then they went home. He thinks Mr. Whittier had left before the doctor arrived. Nobody made any objections because he and Mr. Giles went home.

"Q. That is, you understood that you were at liberty to stop work if you wanted to? A. We understood that after McCarthy was taken sick. Mr. Whittier knocked us all off. Mr. Whittier told them they had better quit. He was not told by anybody that he could not quit work that morning. If they wanted to quit work, they could, and lose a day's pay.

George W. Whittier, called by the claimant, testified:

That he lives at 13 Essex street, Danvers.

On August 2, 1917, he was foreman and had charge of the men and material in the pit. The men in the pit were feeding gravel part of the time and perhaps stone part of the time. (Insurer objects to this line of testimony on the ground that it is not material to the issue.) The men were feeding a motor truck and a stone crusher. After the material was prepared for the truck, the truck was taken on the road. There was a road gang building and repairing the roads and using the steam roller. There were from four to six men in the gang road building. (Insurer objects specifically to last question.) From four to six men spread the material and prepared it for the roller. In order to keep that number of men going, it required from ten to twelve men in the pit. At this particular time there was a shortage of help. Mr. McCarthy was not a resident of Danvers; he lived in Salem and was hired through an advertisement in the paper which witness inserted for help, at $3, eight hours a day. He was in the tower pit at the time Mr. McCarthy was sunstruck. His attention was first called to the fact that Mr. McCarthy had been sunstruck when he saw him lying in the shade in company with Mr. Giles and Mr. Harrigan. He cannot say how long he had been away from where Mr. McCarthy was before he was struck. In order to do the work, he was anxious to have the men continue to work. Mr. McCarthy was there that morning, doing picking and shoveling. The men were working filling trucks that ran on tracks. As they left the place where they were filled, they went into some sort of a bin. If he had ten men, he would have five on each car; if he had twelve, it would be six to each car. He cannot say how many men were on the car with Mr. McCarthy at the time. They had two push cars running that day, and the men on the ground were evenly divided. When the cars were filled, the men would push them down the incline. In the meantime another one would come back and the men would keep it moving all the time. He thinks he told the men to go home after Mr. McCarthy had been stricken because of the heat of the day. If one or two or

three men stopped work, it would "bother" the work very much, and he would not be able to get the work out as well as would be required to keep the crew on the street. It would stop the men from going along to the degree they were supposed to work. They could not get enough material up to them. He testified at the previous hearing.

Cross-examined, the witness testified:

That he supposes some day he had nine men working; sometimes a man would not come in to work. When a man did not come in to work, he would take a man from the crusher so as not to break up the crew. On the day of this accident, he does not know whether he had ten or twleve men working. If one man quit work on that day, the work would still go on in the pit. One man away would make a great deal of difference in some respects. He had men working on the crusher the day of the accident. He does not know how many men were working on the road that day. He does not know whether one of the men quit because of the heat. He does not remember whether or not he told the men to quit on this particular day. What he said at the last hearing was true. His memory is just as good to-day of things at that time, as it was at the last hearing. If he testified in Danvers that he told the men they could quit if it got too hot, it must have been true. He does not remember testifying about that. He has not talked with anybody about this case since that hearing.

Questioned by chairman, the witness testified:

That the men were doing practically steady work because the car was hauled away as fast as it was filled. The cars run on elevated tracks and dump into a bin which is about 200 or 300 feet away; then the truck backs under the bin, a man pulls the lever, and the material goes into the truck. There was a car being filled practically all the time. Every crew had their car; it might take two minutes for it to go down and back. The men take turns going down with the cars and the men who remain behind pick up the stone, which has been thrown to one side, to be put in the crusher. There was no one on the job on August 2nd, except himself, acting as boss.

Questioned by counsel for the insurer, witness stated:

That the gang of workmen were employed by the street department of the town of Danvers, under the head of laborers. The men of this gang, at times, worked very hard; they did not loaf at other times. When his back was turned, he did not know whether the men worked except by knowing how often the cars came down. (Objection to last statement by counsel for claimant.) Mr. McCarthy was a good worker. He does not remember testifying at the previous hearing that no one kills himself when he is doing town work. If he made that statement, it was true. He still thinks that no one kills himself doing town work. He has been a foreman since a year ago last April.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellant.

McSweeney & McSweeney, F. H. Caskin, Jr., and A. Glovsky, all of Salem, for appellee.

DE COURCY, J. The employee received a sunstroke while working for the town of Danvers in a sand or gravel pit on August 2, 1917. The Industrial Accident Board awarded him compensation, a decree in accordance with their decision was entered in the superior court, and the insurer appealed. This court, in May, 1918, reversed the decree, and ordered that the case be recommitted to the board to hear the parties on the question whether the employee was at liberty to stop his work in time to protect himself from injury." McCarthy's Case, 230 Mass. 429, 119 N. E. 697.

Thereupon the parties submitted expert and other testimony, and after a hearing the board made the following finding:

"That the length of time which elpased between the time when the employee began to get the first symptoms and the time that he collapsed from sunstroke was inappreciable and that he had no opportunity to escape the effects of the personal injury occasioned by reason of his exposure to the heat. While the employee had the same right, or liberty, to leave his employment as any employee has when sickness overtakes him, he had no prior warning of the coming of the attack of sunstroke, was taken unawares, and was overcome thereby, because the heat in the gravel pit was greater than the heat to which an ordinary outdoor worker was exposed on the day of the injury."

[1, 2] This finding was amply warranted by the evidence. It settles in the employee's favor the only question bearing on his right of recovery that was left open on the earlier appeal. On all the evidence the board was warranted in finding that the employee's injury arose out of his employment. The place where he worked was a pit, with banks which attracted the extreme heat and shut off the air, except from the south. The nature of his work required him to remain at it steadily. The Board well might find as a fact that the location and nature of the work peculiarly exposed the employee to the danger of sunstroke; in other words, that the risk of injury by sunstroke was naturally connected with and reasonably incident to his employment, as distinguished from the ordinary risk to which the general public is exposed from climatic conditions per se. McManaman's Case, 224 Mass. 554, 113 N. E. 287; Mooradjian's Case, 229 Mass. 521, 118 N. E. 951; Hallett's Case, 121 N. E. 503, Jan. 13, 1919; Morgan v. Owners of Steamship Zenaida, 2 B. W. C. C. 19; Davies v. Gillespie, 5 B. W. C. C. 64; Kanscheit v. Garrett Laundry Co., 101 Neb. 702, 164 N. W. 708; State ex rel. Rau v. District Court, Ramsey County, 138 Minn. 250, 164 N. W. 916, L. R. A. 1918F, 918; Hernon v. Holahan, 182 App. Div. 126, 169 N. Y. Supp. 705.

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

KEANEY'S CASE.

IN RE T. LIBBY & CO.

IN RE TRAVELERS' INS. CO.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -"ARISING OUT OF THE EMPLOYMENT."

Where a delivering teamster left his wagon to collect receipts pertaining to his work, which had been in his hat blown from his head by the wind, and was struck and fatally injured by an automobile, the injury arose "out of his employment," within the Workmen's Compensation Act and acts amendatory thereof.

(For other cases, see Master and Servant, Dec. Dig. § 375[1].) *Decision rendered, April 2, 1919. 122 N. E. Rep. 739.

Appeal from Superior Court, Norfolk County.

Proceedings by Charles F. Keaney, under the Workmen's Compensation Act, for compensation for the death of John Keaney, the employee, opposed by T. Libby & Co., the employer, and the Travelers' Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board, its award confirmed by the superior court, and from the decree the insurer appeals. 'Decree affirmed.

John J. Hayes, of Boston, for claimant.

Walter I. Badger and Louis C. Doyle, both of Boston, for insurer.

PIERCE, J. This is an appeal by the insurer from a decree of the superior court entered in accordance with a finding of the Industrial Accident Board under chapter 751, Acts of 1911, and the acts amendatory thereof.

The evidence submitted to the board member and on review to the Industrial Accident Board warranted the following findings and rulings:

(1) John Keaney, a teamster, while engaged in the performance of his duties on September 5, 1917, received the injuries which caused his death on September 19, 1917. He was driving across Prison Point Bridge, having finished making a delivery, when the wind caused papers which were within his hat to be blown out upon the public highway. Keaney stopped his horses, got down from his wagon for the purpose of collecting the papers (certain receipts pertaining to his work as a teamster), and while so doing was struck and fatally injured by a passing automobile.

(2) The claimant is, and was at the time of his father's injury and death, mentally incapacitated from earning; he is presumed to be wholly dependent for support upon the employee, and is entitled to a weekly compensation of $10 for a period of 400 weeks from September 5, 1917, subject to the provisions of the act.

Conceding that the claimant was totally dependent on the deceased employee, and that the employee was in the course of his employment in leaving the wagon, the insurer contends the injury Keaney received did not arise out of his employment within the meaning of the words as used in the Workmen's Compensation Act, because the action of picking up papers blown from the employee's hat into the street "was not an inevitable and frequent incident of his work," "was not a 'necessary concomitant of the occupation the man is engaged in,'" but "was merely an isolated instance of a danger peculiar to the whole public.". In support of its position the insurer quotes from McNichol's Case, 215 Mass. 497, 499, 102 N. E. 697 (L. R. A. 1916A, 306) the negative statement that "it [that is, the phrase 'arising out of his employment'] 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 workman would have been equally exposed apart from the employment," and from CozensHardy, M. R., in Sheldon v. Needham, 7 B. W. C. C. 471, that "there must be some special risk incident to that particular employment, a risk which imposes a greater danger upon employee than upon an ordinary member of the public."

The words quoted from the McNicol Case, supra, were not intended in any degree to impair the force and strength of the immediately preceding, affirmative, explicit assertion that "if the injury can be seen to have followed 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." The definition of the phrase arising out of the employment in McNicol's Case, supra, decides that the injury grows out of the employment if in fact there was a causal relation between the employment and the injury which was not so remote as to

preclude a legitimate inference that the risk which resulted in the injury was incidental to the character of the employment, or to the conditions of the employment which exposed the workman to the injury. Sundine's Case, 218 Mass. 1, 105 N. E. 433, Reithel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304, Stacy's Case, 225 Mass. 174, 114 N. E. 206, Hallett's Case, 121 N. E. 503, Cranney's Case, 122 N. E. 266, Harbroe's Case, 223 Mass. 139, 111 N. E. 709.

Hewitt's Case, 225 Mass. 1, 113 N, E. 572, L. R. A. 1917 B, 249, Moore's Case, 225 Mass. 258, 114 N. E. 204, and Donahue's Case, 226 Mass. 595, 116 N. E. 226, L. R. A. 1918A, 215, are cases where the causative relation between injury and employment was two remote to charge the employment with the risk of the particular injury received; while the injury received in Reithel's Case, supra, flowed from the employment "as a rational consequence."

In the case at bar the employment of Kearney to drive a team through the public streets and deliver goods required of him every reasonable and lawful effort to accomplish his task. His work did not require him to stay on his wagon. He was bound in the performance of his duty to use the street to deliver goods, to regain packages or papers fallen from the wagon, as also to care for his horses, adjust the harness and repair the wagon, if necessary. It is manifest he might be injured while in the street in the performance of duty, and it is plain his employment therein exposed him to the particular injury he received.

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

O'FLYNN'S CASE.*

COMPENSATION

1. MASTER AND SERVANT - WORKMEN'S ACT — DEPENDENCY OF HALF BROTHER — PAYMENTS THROUGH MOTHER.

Dependency of half-brother on earnings of deceased employee, within Workmen's Compensation Act, could not be ruled adversely to him because the contributions were not made directly to him but were paid to his mother, decedent's stepmother.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

2. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-EXTENT OF DEPENDENCY-QUESTION OF FACT. The extent of the dependency of claimant under the Workmen's Compensation Act for the death of his half-brother was for the Industrial Accident Board to decide as a question of fact, and if there was any evidence to suport the board's finding, the Supreme Judicial Court cannot disturb it.

(For other cases, see Master and Servant, Dec. Dig. § 418[6].)

3. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-EXTENT OF DEPENDENCY-EVIDENCE.

Evidence held to support findings of Industrial Accident Board that earnings of decedent's stepmother, were sufficient merely for her own * Decision rendered, April 14, 1919. 122 N. E. Rep. 767.