dangerous position is more liable to accident by reason of the disability which he brings with him, and an old man is much more likely in a dangerous position to meet with an accident than is a young man, will not relieve the employer from liability. The accident arises out of the employment none the less because the remote cause is an infirmity existing when the employment was undertaken. Thus, where a hack driver is injured from being thrown

was more likely to occur in his case on account of the hardening of the arteries; in S. S. Swansea Vale v. Rice, 4 B. W. C. C. 298, a case of temporary illness, contributing to the accident of falling overboard from a vessel; in Groves v. Burroughes & Watts, Ltd. (1911) 4 B. W. C. C. 185, C. A., where a workman, after an operation, resumed his work at the lever of a machine before his wound was completely healed, and, being suddenly missed, was found several yards away speaking to a foreman, with the blood pouring from his wound, which had been reopened; in Brown v. Kemp (1913) 6 B. W. C. C. 725, C. A., where an old rupture came down while a brewer's assistant was lifting a cask, and the county court found the fact of the accident; in Dotzauer v. Strand Palace Hotel, Ltd. (1910) 3 B. W. C. C. 387, C. A., where a scullion who had an abnormally sensitive skin suffered inflammation of his hands from washing crockery in hot water and soda; and in Maskery v. Lancashire Shipping Co. (1914) Stone's W. C. A. Ins. Cas. 290 (Court of Appeal, England), a case of death from heat stroke suffered by a laborer in the engine room of a steamer in the Red Sea, deceased being physically unfit for the work, which involved exposure to extreme heat.

61 Wicks v. Dowell & Co., Ltd. (1905) 7 W. C. C. 14, C. A.

"When you are taking the incapacity which follows when a second cause has intervened, in my opinion it is the employers at the time of the intervention of that second cause who are liable for the whole incapacity; the liability is not less because the man has brought to his work something which makes an accident more serious than it otherwise would be." Fletcher Moulton, L. J., in Noden v. Galloways, Ltd. (1912) 5 B. W. C. C. 7, C. A. "In my opinion, when once the case is shown that the man having the disability occasioned by the 1902 accident met with another accident in 1910, it is the second employer who is liable, and who alone is liable, and that it is not relevant to say that the 1902 accident was a contributing cause." Cozens-Hardy, in Noden v. Galloways, Ltd., supra.

Where an employé was partially paralyzed and totally incapacitated for a year by reason of an injury due to strain, and died of pneumonia which he was unable to resist because of his weakened condition, the injury arose out of his employment. Merritt v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 635 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.). The

from his seat while dizzy in consequence of a disease, the question whether the accident arose "out of" his employment depends on whether the proximate cause arose out of the employment, regardless of the fact that such proximate cause was originated or aided by the employé's disease as the remote cause."2 To this rule that the benefits of the Compensation Acts are not restricted to persons in normal condition, but cover subnormal persons as well, exception has been made where varicose ulcers had been so repeated and so virulent as to leave only scar tissue upon the shins of an injured workman, so that a slight abrasion of the skin, which in the normal person would have amounted to nothing, resulted in a protracted and stubborn ulcer.63

evidence showed in this case that the employé received a personal injury while lifting a crate of bottles, and that this injury had materially accelerated and aggravated a nervous condition which existed at the time; also it was in evidence that the employé was doing work which was entirely beyond her physical ability to perform. It was held that the employé was entitled to compensation. Pidgeon v. Md. Casualty Co., 2 Mass. Wk. Comp. Cases, 348 (decision of Com. of Arb.). Another employé fell and broke his leg while performing his usual work, and it became necessary to amputate it. The insurer refused to pay compensation on the ground that the leg was in such a weakened condition, due to a previous operation, that any slight jar would cause a fracture. The medical evidence showed that the fracture was due to a fall arising out of and in the course of the employment, and that the injured leg was "possibly weaker" than the other leg prior to the injury. It was held that the employé was entitled to compensation. Kesler v. Mass. Employés' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 168 (decision of Com. of Arb.).

Where the medical evidence showed that the applicant's falling of the womb was directly caused by straining and heavy lifting done in the course of her employment, no disease being present, but the injury having been made possible by laceration at the time of the birth of a child 30 years before, such injury was caused by accident arising out of the employment. Loustalet v. Metropolitan Laundry Co., 1 Cal. I. A. C. Dec. 318.

62 Carroll v. What Cheer Stables Co. (R. I.) 96 Atl. 208. A hack driver was injured from being thrown from his seat while he was helpless from dizziness due to the disease; his fall was an accident arising out of his employment. (Wk. Comp. Act, Pub. Laws 1911-12, c. 831, art. 1, § 1) Id.

63 Keen v. Scott Co., 2 Cal. I. A. C. Dec. 533.

DIVISION IV.-PROOF

§ 126. Burden, requisites, and sufficiency of proof

In a proceeding under a Workmen's Compensation Act the burden of proving the facts necessary to establish a case is on the claimant, the same as in any proceeding at law. He must show by competent testimony, direct or circumstantial, not only the fact of an accident or injury, but that it occurred in connection with the alleged employment, and both arose out of and in the course of the service at which the workman was employed. The burden is

64 Corral v. William H. Hamlyn & Son (R. I.) 94 Atl. 877.

65 Hills v. Blair, 182 Mich. 20, 148 N. W. 243; (Wk. Comp. Act, St. 1911, c. 751, amended by St. 1912, c. 571) In re Von Ette, 223 Mass. 56, 111 N. E. 697; In re Scanlan, Op. Sol. Dept. of L. 724.

The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose "out of and in the course of his employment" rests upon the claimant. McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N. W. 572, L. R. A. 1916A, 323; Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999; Armour & Co. v. Industrial Board of Illinois, 273 Ill. 590, 113 N. E. 138; Lannigan v. Lannigan, 222 Mass. 198, 110 N. E. 285; In re Doherty, 222 Mass. 98, 109 N. E. 887; In re Savage, 222 Mass. 205, 110 N. E. 283; Bryant v. Fissell, 84.N. J. Law, 72, 86 Atl. 458; Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931; Barnabus v. Bersham Colliery Co. (1910) 102 L. T. R. 621, 3 B. 216, and on appeal (1910) 103 L. T. R. 513, 4 B. 119, 48 S. L. R. 727; Cowell v. Mason, 1 Cal. I. A. C. Dec. 614; Spencer v. Dowd, 1 Cal. I. A. C. Dec. 46.

In a case involving a fatal accident attended with uncertainty as to details, the court, opinion by Judge Steere, said: "I think one may deduce from the decisions: (1) That the burden is always on the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not be direct, but may be circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts found are such as to entitle him reasonably to infer his conclusion from them." Hills v. Blair, 182 Mich. 20, 148 N. W. 243.

To entitle an injured employé or his dependents to compensation it is necessary to prove: (1) That the accident occurred in the course of the employment, that is, while the employé was performing some service for his

on the applicant to establish the fact of accident, if accident be essential under the Act, that the injury complained of was proxi

66

employer; and (2) that the accident arose out of the employment, that is, that the nature of the accident is in some way incidental to or connected with the nature of the employment. Bush v. Ickleheimer Bros. Co., 1 Cal. I. A. C. Dec. 522. Where a traveling salesman crossing on a ferry from San Francisco to Oakland upon business becomes nauseated and dizzy, and after reaching Oakland fell because of such dizziness, the fall causing concussion of the brain and disability for a considerable period of time, and the evidence fails to show that the bay was rough or weather bad at the time of crossing, such evidence is insufficient to establish an accident arising out of the employment as the cause of the concussion of the brain. There must be evidence in such cases to connect the cause of the fall with a risk incidental to or arising out of the work being performed. Van Winkle v. Johnson Co., 2 Cal. I. A. C. Dec. 188.

In the absence of evidence that it was part of an employé's duty to cross a track or be on such track, there could be no recovery for death of a workman who was killed by an engine on the main track, who had left his place of work at a car on a side track. Lannigan v. Lannigan, 222 Mass. 198, 110 N. E. 285.

Sufficiency of proof that injury arose out of and in course of employment. Evidence authorizing a finding that decedent, while at work for his employer as a journeyman carpenter on a building in the course of erection, was killed by the falling of a bar of metal from one of the upper stories, which was caused to fall by a workman of an independent contractor, who had work on the same building, authorized a finding that decedent's death arose "out of and in the course of his employment." (P. L. 1911, p. 136, § 2) Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. Massachusetts. Evidence that an employé, working on a car on a spur track which was about four inches below the main line, left the car and went upon one of the main tracks of the railroad, where he was struck by an engine and killed, without any evidence showing that it was part of his employment to cross the main track, or why he was there, was not sufficient to support a recovery under the Act. In re Savage (1915) 222 Mass. 205, 110 N. E. 283. The evidence showed that the employé was overcome in the press room of the subscriber, and, starting home, collapsed on the street and was taken to the hospital. A physician who treated him on several occasions stated he could find no evidence of anything tubercular in the lung. The hospital records and the certificate of death gave tuberculosis as the cause of death. It was held that the employé did not receive a personal injury arising out of and in the course of his employment. Leary v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 184

66 See § 99, ante.

HON.COMP.-30

67

mately caused thereby, and that the incapacity or death resulted from such injury.68 This burden may be sustained by circumstan

(decision of Com. of Arb.). Michigan. Evidence that a workman contracted blood poisoning from scratching his hand on a manifold on which he was working, and died, showed that his injury arose out of and in the course of his employment. Fitzgerald v. Lozier Motor Co. (1915) 187 Mich. 660, 154 N. W. 67. Evidence that a workman, after injuring his hand on a nail in some fuel with which he was firing an oven in defendant's bakery, died of septic pneumonia resulting from systemic sepsis, which developed from the wound, showed that his injury arose out of and in the course of his employment. Reck v. Whittlesberger (1914) 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. Wisconsin. A decision of the commissioners that the miliary tuberculosis from which decedent died was partly caused by a gas explosion could not be disturbed, where it was reasonably sustained by the testimony of physicians qualified to speak on the subject and by other evidence. Heileman Brewing Co. v. Schultz (1915) 161 Wis. 46, 152 N. W. 446. Where it appeared merely that the workman's thumb became swollen while he was at work, and the physician called found it infected, and the infection developed until he was permanently deprived of the use of the hand, it was held that it had not been proven that the injury was sustained in the course of employment. Christiansen v. St. Mary's Hospital, Rep. Wis. Indus. Com. 1914-15, p. 20. California. Where the employé, while in the course of his employment after a rainstorm, driving floating brush away from a railway bridge, was last seen going along the bank downstream, and it appeared that there was no necessity nor apparent reason for his leaving the bridge, and no service to be rendered elsewhere, and that he was drowned by slipping off the bank a thousand yards from the bridge, marks on the bank so indicating, the evidence was held insufficient to show that he was performing service in the course of his employment at the time of drowning. Peroni v. San Francisco, Napa & Calistoga Ry., 2 Cal. I. A. C. Dec. 818. Where an employé was employed to operate an automobile for hire by his employer, and was seen to depart in the automobile driving two passengers for hire, and some days later was found dead by the roadside, circumstances tending to show that he had been murdered by the passengers for some unknown reason, not that of robbery, such evidence was insufficient to establish that his murder was due to any risk arising out of his employment. There is no presumption of law to the effect that a chauffeur is, by reason of his occupation, subject to any special risk of being murdered, and, in the absence of direct evidence sustaining this, a death benefit cannot be allowed to his dependents. Gibson v. Aves, 2 Cal. I. A. C. Dec. 185. Evidence that a prescription pharmacist, by reason of the poor lighting of his

67 See § 127, post.

68 See §§ 127, 129, post.