The colliers were conveyed free of charge, and it was an implied term of the contract of service that colliers should have the right to travel to and fro without charge. One of the colliers was knocked down and killed while waiting on the platform for the return train. It was held the accident arose out of and in the course of the employment. Nor do I think Pierson v. Interborough Rapid Transit Co., 184 App. Div. 678, 172 N. Y. Supp. 492, affirmed 227 N. Y. 666, 126 N. E. 920, or Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489, 128 In Rosmuth v. American Radiator Co., N. Y. App. Div. 193 N. Y. Supp. 769 (1922), there was under consideration an appeal from an award of compensation to an employee for injuries sustained by him in an assault committed upon him, by unknown men, while he was at work at a lonely place on his employer's premises at night. It appeared that the assault took place shortly after the plaintiff and other employees of the defendant had received their week's pay, and that the fact that this was pay night for defendant's employees was well known in the community. That robbery was the motive of the assault was unquestioned. In affirming the award the court said: "The recent current of authority in this state and elsewhere has been to take a broad conception of the word 'employment,' as used in the statute, not as confined merely to the nature of the work, or the particular service of the individual claimant, but as reaching out and embracing all of the conditions, obligations and inci dents of the employment. # * * * * * Under this broader conception of employment and its incidents 'the test is the relation of * the employment to the risk.' The fact that the risk may be common to all mankind does not disentitle a workman to compensation, if in the particular case the risk is accentuated by the incidents of the employment. The question is whether there is a special exposure to the peril. I believe that the incident of the employment of Rosmuth which brought him to the spot where the assault and robbery were more successfully accomplished, and thus in a real sense invited, increased his exposure to a risk otherwise common to humanity. Since the employment directly contributed to the risk by added exposure to a common peril, the accident may be said to have arisen out of his employment." XI. Skylarking. A. Application of air hose to employee. Claimant's decedent and two other workmen in the service of the defendant shipbuilding company were at work in a tank, using, among other implements, a compressed air hose. They became engaged in a scuffle, in the course of which decedent stumbled into a position such that the current of air entered his body, causing peritonitis. The court, in sustaining an award of compensation as against the objection that the injury was not due to N. E. 888, upon which appellant chiefly relies, at all in conflict with the views above expressed. In the Pierson Case, Pierson was a guard on one of defendant's passenger cars. On arriving at a terminal station he was relieved and another guard took his place. He then had two hours before resuming work. On reaching the terminal he walked out of the train of which his car had been a part, up to the front car, boarded it, sat down, and remained until the accident occurred. an accident arising out of the employment, said, in part: "It is not conceivable that it was the intention of the legislature to preclude an injured workman or his beneficiaries from the benefits of the Workmen's Compensation Act for the reason that at the time of, or immediately prior to, the accident causing the injury, such workman had been engaged in play, unless the injury or death results to such workman 'from the deliberate intention of the workman himself to produce such injury.' We think it may fairly be said under the facts in this case that the accident arose out of and in the course of his employment.' Stark V. State Industrial Accident Commission, Ore. 204 Pac. 151 (1922). - B. Wrestling, While the applicant, in the course of his employment, was passing from one place on his employer's premises to another, he passed two fellow employees who were wrestling in sport. In some way they fell upon the applicant, breaking his leg. He was not at any time participating in the scuffle. It was not alleged nor did it appear that employees of the defendant habitually engaged in this sport, or that the employer had any knowledge of such a practice. It was held annulling an award, that the injury did not arise out of the employment, but was due to an event wholly disconnected therewith, and was not compensable. Great Western Power Co. of He was at the time of the acci California v. Industrial Accident Commission, - Cal., 201 Pac. 931 (1921). While employees of a fruit packing company were at work, one of them threw a grape at another, but missed him, the grape striking the applicant instead, seriously and permanently injuring his eye. It was held that while the accident occurred in the course of the employment it was not due to any risk reasonably incident thereto and hence did not arise therefrom, and was not compensable. An award by the commission was therefore annulled. Federal Mut. Liability Ins. Co. v. Industrial Accident Commission, Cal. 201 Pac. 920 (1921). C. Crowding to time clock. It was a rule of the claimant's employer that all employees should ring out when quitting work for the noon lunch hour, and on the day of the accident giving rise to this proceeding, the employees, as usual, crowded to get to the clock. While claimant was on his way to perform this duty, a fellow workman was pushed against him by a third employee as the result of some horse play in which claimant was taking no part. It was held that the pushing of the employee, whether done maliciously or in sport, had no relation to the employment or its duties, and hence formed no basis for predicating liability against the employer, although occurring in the course of the employment. An award was therefore set aside. Lee's Case, Mass. 134 N. E. 268 (1922). dent, on his way to keep a personal appointment with his dentist. Obviously, the injury to him did not arise out of or in the course of his employment. In the Kowalek Case the decedent was an employee of the elevated railway company, had finished his work for the day, went out upon a station platform for the purpose and with the intention of taking a passenger train to his home. The company permitted him to ride to and from his work upon trains or cars, without charge, although it XII. Violation of employer's orders. A. Watchman selling gasoline. Claimants' decedent was employed at a pumping plant of the defendant railroad, his duties being to maintain a supply of water in a tank for the use of train engines, and to take care of the defendant's property at the pumping station, which included, besides the tank, the engine and the pump which it operated, and the gasoline tank in which gasoline for the engine was stored. He had no authority to sell gasoline, but on a certain night an automobile party got him up and induced him to let them have some gasoline for their car. The members of the party, after getting the gasoline, declined to pay for it, and to secure themselves from apprehension undertook to lock decedent in the oil house. In the scuffle decedent was fatally shot. It was held that, irrespective of decedent's intentions in selling the gasoline, or what he was intending to do with the proceeds, his act in letting the automobile party have the gasoline was an act outside of the scope of his employment, and hence it could not be said that his injury arose out of the employment. A judgment denying compensation was accordingly affirmed. Chicago & A. R. Co. v. Industrial Commission, 300 Ill. 346, 133 N. E. 204 (1921). B. Meddling with electrical apparatus. Claimant's decedent left his place of work in defendant's plant on a personal errand, and about 15 minutes later his dead body was found at a point 62 feet out of his direct course in returning to his place of work. He was killed by contact wtih a defective electrical apparatus. There was testimony to the effect that decedent's presence at the place where he was killed was not only unnecessary, but in violation of a rule of the employer, but there was other evidence to the contrary as to this last point. Without determining that issue, the board found that decedent came to the place where he was killed in some unknown manner, and that the injury was by accident arising out of and in the course of the employment, and made an award. Reversing this award the court held that under the circumstances the general finding of injury by accident arising out of and in the course of the employment was insufficient to sustain the award, and that the board had manifestly either ignored or overlooked the importance of the issue as to disobedience of orders. The cause was therefore remanded for a finding on this question. Jenczewski v. Aluminum Co. of America, 199 N. Y. App. Div. 156, 191 N. Y. Supp. 392 (1921). C. Riding on top of mine hoist cage. The principal duties of the applicants' decedent were performed at the top of the tipple of the defendant's mine, a concrete structure built to a height of 40 feet above the mouth of the shaft. His work there was to dump cars of coal as they were brought to the top of the tipple by the hoisting was not obligated to transport him; in other words, free transportation was not incidental to his employment. He went upon the platform, not as an employee, but as a prospective passenger. He was found dead upon the tracks a short distance from the platform, at a point where the general public or passengers had no right to be. His death was caused by coming in contact with the electric rail. It was held his death did not arise out of or in the course of his employment. But Judge Collin, in that case, took pains to point out, in the course of the apparatus. These cars arrived at somewhat irregular intervals, and between cars decedent was expected to assist, when needed, with other work performed on the ground and in the immediate vicinity. Access to the top of the tipple was secured by a flight of stairs, and decedent invariably used these stairs in descending when required for work below. Frequently he rode to the top on the cage of the hoist when it brought up a car of coal, and as a rule it was necessary for him to go up this way because of lack of time to climb up on foot. On the night in question decedent was at work on the ground when the signal from the engineer of the hoisting engine advised him that a car to be unloaded was on its way out of the mine. He signaled the engineer to stop the hoist when the car was at the mouth of the shaft and mounted the cage to ride up, as usual. The cage proceeded upwards, and in some way not made clear the decedent was caught and crushed between the cage and the top of the tipple, dying as a result of the injuries so sustained before any one could get to him. It was admitted that the practice of riding up on the hoisting cage was in violation of the Mining Act, but it did not appear that any superior officer of the defendant had ever objected to his doing so. It was held that the act of the decedent, while negligent, did not take him out of the scope of his employment, and hence that his injury arose out of and in the of the employment and compensable. Union Colliery Co. v. In course was dustrial Commission, 298 Ill. 561, 132 N. E. 200 (1921). XIII. Voluntary act. Claimant's decedent was chief engineer of the defendant electric company, and as such was charged primarily with the duty of running and keeping in order the machinery of the defendant's plant. Defendant hired a bricklayer and a plasterer to take down a certain wall of tile and cement adjoining the engine room of the plant, pursuant to the plans for a prospective enlargement of the plant. While they were at this work the decedent, apparently for the purpose of expediting the work, undermined a portion of the wall with a pinch bar so that the wall fell upon him, causing injuries from which he later died. The trial court denied compensation upon the ground that the act of the decedent was purely voluntary and without the scope of his employment. Affirming this judgment, the court held that in the absence of more substantial evidence than had been adduced that the decedent, with the knowledge and assent of the defendant, had frequently assisted his employers in other jobs outside of the usual duties of a chief engineer, the conclusion of the trial court was essentially right. Wilson v. Dakota Light & Power Co., - S. D., 186 N. W. 828 (1922). XV. Risks common to general public. A. Excessive heat. opinion delivered by him, that if the transportation had been an incident of the employment a different result might have been obtained. He said: * * "The contract of employment did not obligate the company to transport him. It did not contract that he should ride to and from work or pay him for the time through which he was riding. The transportation was not an incident of the employment. The employment continues throughout the transportation in case the parties by their contract of hiring positively or inferentially so stipulate. If they do not so stipulate the employee when he enters into the recover. While this suit was pending, "The N. Y. App. Div., 188 N. Y. Supp. 193 (1921), the court affirmed, without opinion, an award of compensation to the dependent of an employee who suffered a cerebral hemorrhage while at work in a gravel pit, the evidence showing that the day of the accident was one of the hottest of the year, and that the decedent was subjected to the heat in an unusual degree due to the radiation of the heat from the walls of the pit. 3. Kitchen employee. A man employed as a cook in a hotel, feeling faint on account of the excessive heat in the kitchen, went out into an alley adjoining the kitchen to get fresh air. While there he fainted and fell in front of an auto-truck, thereby sustaining sustaining injuries which caused his death shortly thereafter. His widow brought suit against the express company whose servant was in charge of the truck, but failed to and 238 B. Lightning striking employee on steel bridge, The claimant's decedent was an oxyacetylene welder, in the service of the defendant. While he was at work in the course of his employment dismantling a steel bridge he was struck by lightning and killed. His place of work was directly over the stream crossed by the bridge. He carried a number of tools and other metallic objects upon his person, and examination of his body showed burns upon it under the places where these tools were carried. It was held that the nature of his work subjected him to special |