excessive heat to which the workman is exposed by the conditions under which he works is compensable."4

In regard to using in a judicial opinion the word "incidental" instead of "arising out of," the words of the statute, Earl Loreburn said: "I do not repent of having myself, as have other judges, in trying to convey my thoughts, spoken of 'risks incidental' to an employment, but that does not mean merely risks which ordinarily occur in it. For the future, however, in order to prevent misapprehension, I shall confine myself to the actual words of the text. The words are 'arising out of."" 65 Under Acts which, deviating from the usual language, provide for liability only where at the time of the accident the employé is performing service growing out of and "incidental to his employment," the effect seems to be the same as though the usual words were used."

§ 116. Risks peculiar to employment

While it is not ordinarily essential, in order that an accident or injury may be one arising out of the employment, that it be peculiar

C. C. 9; Matthews v. Bedworth, 1 W. C. C. 124; London & Edinburgh Shipping Co. v. Brown, 42 Scottish L. R. 357.

64 In Wajteniak v. Pratt & Cady Co., Inc., 1 Conn. Comp. Dec. 545, where the workman died of heat stroke, and it was shown that his duties as a furnace tender subjected him to very great heat, it was held that the heat stroke causing death was due to his employment, and that the injury arose out of that employment. In McGarva v. Hills, 1 Conn. Comp. Dec. 533 (affirmed by superior court on appeal), it was held that plaintiff's death from heat exhaustion was due to working under conditions of great heat and want of air.

65 Trim Joint District School v. Kelly (1914) 7 B. W. C. C. 274, H. L.

66 Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143. Where an employé died of typhoid fever contracted from impure drinking water furnished by his employer, the injury sustained was incidental to his employment. Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273.

The risk to a cigar store clerk of injuries in a quarrel between him and a stranger, not a customer, was not incidental to nor a part of his employment. Treadwell v. Marks, 3 Cal. I. A. C. Dec. 3.

HON.COMP.-27

67

to the particular employment in which the workman was engaged at the time of the injury, it must arise out of a risk in some way peculiar to the business in which he was engaged,68 and not come from a hazard to which he would have been equally exposed apart. from the employment." The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant." For example, an injury from a

67 To arise out of the employment an accident need not ordinarily be one peculiar to the particular employment in which the injured employé was engaged at the time of the injury. State ex rel. People's Coal & Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344.

68 Cherry, L. J., in Green v. Shaw (1912) 5 B. W. C. C. 573, C. A.

69 "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," does not arise out of the employment. McNicol's Case, 215 Mass. 497, at page 499, 102 N. E. at page 697, L. R. A. 1916A, 306, distinguished in Re McPhee, 222 Mass. 1, 109 N. E. 633.

70 (St. Wis. 1915, § 2394—3, subd. 2) Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143.

It is essential that there be some special risk incident to the particular employment, a risk which imposes a greater danger upon the employé than upon an ordinary member of the public. Sheldon v. Needham (1914) 7 B. W. C. C. 471, C. A. Fletcher Moulton, L. J., says in Peel v. Lawrence & Sons, Ltd. (1912) 5 B. W. C. C. 274, C. A.: "There was no risk whatever, other than that to which every other human being is exposed. True, it was done for the purposes of his work. Suppose in an employment part of the terms was that a man should be given lunch, and that he bolted his food and so burst a blood vessel; there is no doubt that he took his refreshment for the purpose of enabling him to do his work, but there was no risk whatever connected with that work. That is not an accident arising out of his employment."

Where an employé, who drove a butcher's delivery wagon and occasionally assisted in the shop, was killed from stumbling over a bucket while he was making a delivery on foot, the injury did not result from a risk incident to his employment, since by making this delivery he was exposed to no greater danger than that to which any other person would have been exposed while walking in the same place. (Workmen's Compensation Act, §§ 3, 2, groups 30, 41). Newman v. Newman, 155 N. Y. S. 665.

In the case of Sheldon v. Needham, 7 B. W. C. C. 471, the English Court

fall while at work, caused by faintness or illness, and not brought on by the labor conditions, does not arise out of the employment."1

of Appeal held that under the English Workmen's Compensation Act, from which the words of the New York statute, "arising out of and in the course of his employment," were taken, a charwoman in regular employment, who was sent by her employer to post a letter at a post box about 100 yards from the house, and who slipped on a banana skin in the street and fell, breaking her leg, was not entitled to the benefit of the Act, for the reason that the accident, being due to a risk no greater than is run by all members of the public, did not arise out of the employment. In all cases in which the workman has recovered, there has been evidence that the occupation in which he was engaged exposed him to risks over and above those run by other people. The object of the statute was to secure compensation to workmen who are engaged in occupations which exposed the employés to danger from which other occupations are free. But it was as against accidents incidental to the special employment that the benefit of the statute was given. Falconer v. London & Glasgow Engineering & Iron Shipbuilding Co., Ltd. (1901) 3 F. 564, Ct. of Sess. (Act of 1897). "If the risk was such that by reason of the work in which he was engaged, in the place where he was engaged, and in the manner in which he was compelled to perform that work, he was more readily exposed to it than the public generally, then it was abnormal and incidental to his employment." Brown v. City of Decatur, 188 Ill. App. 147. Where a workman was struck and killed by a train while he was crossing the tracks along a water main upon which he was working, on his way to a hand car where he wished to sit while putting on his boots, preparatory to work, he was injured by an accident arising out of his employment and incidental to it. Id. An accident arising out of his employment while doing that which he is directed to do does not entitle a workman to recover compensation, unless you can say that he was exposed to a greater risk than a member of the general public. Slade v. Taylor (1915) 8 B. W. C. C. 65, C. A.

From the lack of such risk, the accident did not arise out of the employment where a workman's boot shrank and became too tight, injuring his toe (White v. Sheepwash [1910] 3 B. W. C. C. 382, C. A.); where a workman took off his boots and socks, so that he could get around better on the wet floor, and strained his finger in taking them off (Peel v. Lawrence & Sons, Ltd. [1912] 5 B. W. C. C. 274, C. A.); where a maid who was sewing before an open window saw a cockchafer, attracted by the electric light, coming in, and, in throw71 Erickson v. Empire Laundry Co., 1 Cal. I. A. C. Dec. 612. Where the employé, while sweeping dirt and pebbles from the paving, suffered a sudden attack of cardiac syncope, and fell to the pavement, fracturing his skull, with fatal result, the accident did not arise out of his employment. Collins v. Brooklyn Union Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 959.

Nor does an injury so arise where an employé suffers a hemorrhage from natural causes while engaged in his employer's business.72 Bites by poisonous insects, reptiles, or animals are industrial accidents only in those instances where the injury arises out of and happens in the course of the employment and the employé is subjected to a special danger of so being bitten by reason of the nature of his employment. In a California case wherein it appeared that an employé working in a cannery was bitten by a spider while eating lunch upon the premises, and it was not shown that the cannery was to any greater degree infested with spiders than other buildings in the same community, the Commission held the evidence insufficient to show that the employment especially exposed the applicant to the danger of such injury.73 If the spider had been concealed in the fruit being handled at the cannery, and had bitten him while sorting or handling the fruit, and it could have been.

ing up her hand to drive it away, struck herself in the eye (Craske v. Wigan [1910] 2 B. W. C. C. 35, C. A.); where a workman was stung by a wasp while driving the engine of a threshing machine, and death resulted (Amys v. Barton [1912] 5 B. W. C. C. 117, C. A.); and where a workhouse master, who had tubercular trouble, was sitting at the top of some stairs smoking while on duty, and was seized with a fit of coughing, causing him to fall down stairs (Butler v. Burton-on-Trent Union [1912] 5 B. W. C. C. 355, C. A.). Likewise, where a maid, after washing her hair, was drying it outside the house, when she was called to watch the baby in its cradle near the fire, and, while continuing to dry her hair before the fire, her loose sleeve caught fire, and she was fatally burned, the injury did not arise out of the employment. Clifford v. Joy (1910) 2 B. W. C. C. 32, C. A.

72 In re Sanderson's Case (Mass.) 113 N. E. 355.

73 Sterling v. Inderredian Co., 2 Cal. I. A. C. Dec. 172. Where a woman employed in a cannery is bitten by a spider while eating her lunch, such spider bite cannot be considered to be an accident arising out of the employment, in the absence of evidence tending to show that the employment subjected the applicant to more than the ordinary risk of spider bites. In this case the employer's premises were not shown to be to any greater degree infested with spiders than any other building in the community, and the bite was not received while handling fruit in which spiders might be found. Goodwin v. Libby, McNeil & Libby, 2 Cal. I. A. C. Dec. 211.

shown that this was a rather common danger incident to handling such fruit, the Commission would probably have reached a different conclusion.74

Where there is no natural connection between the risk and the employment, as in case of lightning, sunstroke, assaults, dangerous animals, and the like, it must be shown that the nature of the employment peculiarly exposed the employé to such danger. Otherwise the risk is one incident to the commonalty, and the employer is not liable.75 Except when this natural connection exists, risks of the commonalty ordinarily include street risks,76 and risks

74 Sterling v. Inderredian Co., 2 Cal. I. A. C. Dec. 172.

75 Ketron v. United Railroads of San Francisco, 1 Cal. I. A. C. Dec. 528. Where the workman froze the tips of his fingers on a moderately cold day, there being no sudden drop in the temperature and no unusual or unforeseen conditions surrounding the incident, he was exposed to none but ordinary risks of exposure, and could not recover compensation. Aillo v. Milwaukee Refrigerator Transit & Car Co., Rep. Wis. Indus. Com. 1914-15, p. 18.

76 In Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310, the court held that where a general engineer, employed to inspect sugar plants located in different cities, slipped on the ice and was fatally injured while about to board a street car after returning to his home town after a trip of inspection, the accident did not arise "out of" his employment; the court saying in an opinion by Judge Steere: "Slipping upon snow-covered ice and falling, while walking or running, is not even what is known as peculiarly a "street risk"; neither is it a recognized extra hazard of travel, or particularly incidental to the employment of those who are called upon to make journeys between towns on business missions. These distinctions are recog nized, and the rule correctly stated, in an opinion of the Michigan Industrial Accident Board, filed in Worden v. Commonwealth Power Co., 20 Det. Leg. News No. 39 (December 27, 1913), as follows: 'It must also appear that the injury arose out of the employment and was a risk reasonably incident to such employment, as distinguished from risks to which the general public is exposed. To illustrate: On the other hand, it may be fairly said that one of the most common risks to which the general public is exposed is that of slipping and falling upon ice. This risk is encountered by people generally, irrespective of employment. The board also referred to the fact that claimant was upon his own premises as of some force, but appar

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