versation with two other employees of the company. The conversation was purely social, and related to the private affairs of the participants in it. While the little knot of persons was congregated in the street, one of the directors of the company approached in an automobile, intending to stop at the location of the group. In attempting to stop his car the driver accidentally struck the accelerator, with the result that the car pitched forward, struck Stanley, and injured him. He applied to the Industrial Accident Commission for relief under the Workmen's Compensation, Insurance, and Safety Act, and the Commission made an award in his favor. The petitioners, admitting that the accident occurred in the course of Stanley's employment, contend that his injuries are not compensable under the statute, for the reason that they did not arise out of the employment. The respondents, in justification of the award, cite many cases from jurisdictions outside of California in which compensation has been made for injuries suffered by employés while on public streets, but to them we need not specifically refer, as we believe them to be distinguishable from the case now before us and because the decisions of the Supreme Court of this state upon the present question are both numerous and clear. We cite Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215; Kimbol v. Industrial Accident Commission, 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595, Ann. Cas. 1917E, 312; Ward v. Industrial Accident Commission, 164 Pac. 1123, decided May 2, 1917. In the first of these cases it is said (172 Cal. 685, 158 Pac. 213, L. R. A. 1916F, 1164): "The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employé's work or to the risks to which the employer's business exposes the employé. The accident must be one resulting from a risk necessarily incident to the employment. It 'arises out of' the occupation when there is a causal connection between the conditions under which the servant works and the resulting injury. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." There is also a very complete statement of the same rule, in different language, in Kimbol v. Industrial Accident Commission, supra, a part of the statement being: "The causative danger must be peculiar to the work and not common to the neighborhood." When measured by the standards set down in these cases, it is not difficult to satisfactorily conclude the present proceeding. Even if it were conceded that injuries suffered by Stanley would have been compensable if they had resulted from an accident happening to him while actually traversing the street on the way from changing his coat, for his own convenience, to a contest at chess, for his own pleasure, we have by no means settled the matter. If we admit that his risk in crossing the street was a risk incident to his employment, upon the theory that, for the purpose of crossing and recrossing, the street was a part of the company's lot, we are yet afield. The thoroughfare was certainly not a part of the lot in the sense that Stanley might properly have loitered, or stood in social converse, upon it, as he might very properly have done upon any part of the lot located upon the corners of the intersection. When he stopped in the street he assumed a risk common to all who might sojourn there in the same manner. Under such circumstances his employer is not called upon to make compensation for his injuries. They did not arise out of the employment. The award is annulled. We concur: CONREY, P. J.; JAMES, J. SUPREME COURT OF ILLINOIS. CHICAGO PACKING CO. V. INDUSTRIAL BOARD OF ILLINOIS ET AL. (No. 11598.)* 1. WORKMEN'S COMPENSATION-WAIVING DEFENSES. By stipulating before the abitrator that the only question was whether an accident arose out of deceased's employment and raising no other question before the arbitrator or Industrial Board, employer waived the defense that deceased was not engaged in an extrahazardous occupation. 2. WORKMEN'S COMPENSATION-REVIEW. Whether an accident arose out of deceased's employment is a question of fact upon which the arbitrator's decision, affirmed by the circuit court, will not be disturbed if fairly supported by evidence. 3. WORKMEN'S DENCE. COMPENSATION-SUFFICIENCY OF EVI Evidence that deceased stockyard's employee was pursuing customary course near railroad tracks when killed by a train held to sustain arbitrator's finding that the accident arose out of his employment, as against the defense that deceased was killed while stealing a ride on the train. Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings for Workmen's Compensation by Gustav Wilhan and Karolina Wilhan against the Chicago Packing Company for compensation for the death of Herman Wilhan. An award was confirmed by the circuit court and the case certified to the Supreme Court. Affirmed. *Decision rendered, Feb. 20, 1918. 118 N. E. Rep. 727 William J. Weldon and Charles A. Scott, both of Chicago, for plaintiff in error. Samuel F. Kogen and Harry O. Rosenberg, both of Chicago (A. R. Miller, of Chicago, of counsel), for defendants in error. COOKE, J. The Industrial Board of Illinois awarded to Gustav Wilhan and Karolina Wilhan, defendants in error, the sum of $1,650, payable in installments for a period of 416 weeks, against the Chicago Packing Company, plaintiff in error, as compensation for the death of Herman Wilhan, and $129 for medical and hospital bills. This award was confirmed by the circuit court of Cook county, and the cause has been certified as one proper to be reviewed by this court. [1] Herman Wilhan, who was 16 years of age, was employed by plaintiff in error as an errand boy. One of the contentions made by plaintiff in error is that deceased was not engaged in an extrahazardous occupation. Before the arbitrator counsel for both sides agreed that both plaintiff in error and deceased were working under the Workmen's Compensation Act, and that the only question in dispute was whether the accident arose out of and during the course of the employment. The question now sought to be raised was not urged before the Industrial Board on review or before the circuit court. By entering into this agreement and not thereafter raising the question either before the arbitrator or the Industrial Board on review, the plaintiff in error waived the right to raise any question of jurisdiction. American Milling Co. v. Industrial Board, 279 Ill. 560, 117 N. E., 147. [2] The only other contention urged is that the accident did not arise out of and during the course of the employment. This is a question of fact, and, if there was any evidence offered before the arbitrator fairly tending to prove that the accident arose out of and during the course of the employment, the judgment of the circuit court must be affirmed. The accident which resulted in the death of Herman Wilhan occurred on January 12, 1916. On the afternoon of that day he was sent from the plant of the Chicago Packing Company upon an errand to the Exchange building, both of which are situated in the stockyards district in the city of Chicago. In going to the Exchange building, Wilhan walked along Racine avenue, which runs north and south through the stockyards. At the place of the accident there are four railroad tracks running parallel with and on the east of Racine avenue. West of the tracks is a roadway 36 feet in width. The two middle tracks are designated as "running tracks," and the tracks on each side are used for switching purposes. There is no sidewalk along the roadway west of the tracks, and trucks and wagons were almost constantly backed up to the west switching track for the purpose of loading and unloading cars. The proof discloses that it was customary in traveling from the plant of the Chicago Packing Company to the Exchange building for pedestrians to walk along Racine avenue between the two running tracks of the railroad. No one saw the accident. The day is described as wet and cold and the ground as very slippery. At the time of the accident a train of the Grand Trunk Railway system, consisting of an engine and 34 cars, was running north on the east running track at a low rate of speed. A switchman rode on the front of the engine to adjust switches as the train proceeded. When the rear of the train reached a point near Forty-third street, which crosses Racine avenue, the conductor, who was standing on the rear platform of the caboose, saw Wilhan lying between the two running tracks. The train was stopped, and it was found that the boy's right arm had been crushed, apparently by being run over by the cars. He was taken to a hospital and the arm amputated at the shoulder. A week later he died. [3, 4] It is contended by plaintiff in error that the only testimony offered before the arbitrator as to how the accident occurred was that of an interne in the hospital, who testified to what the boy told him, and that this testimony was incompetent. This testimony was incompetent and should not have been admitted. Chicago & Alton R. Co. v. Industrial Board, 274 III. 336, 113 N. E. 629. This was not the only testimony offered on that subject. It was proven that the boy was sent to the Exchange building to deliver some checks there for the plaintiff in error, and that at the time of the accident he was traveling along the route customarily traveled. This evidence was offered to show that the accident arose out of and during the course of the employment. The theory of plaintiff in error was that the boy had climbed up on top of the train which was passing and had been brushed off by the viaduct at Forty-third street near the point where he was found. The testimony offered to support this theory was that the fireman on the train looked back as he was crossing Forty-third street and saw a boy standing there wearing a dark blue suit and a dark cap, and that when about the fourth or fifth car from the engine was passing over the crossing the boy started to climb up the side of the car and that after the train had run about two blocks further it was stopped by the application of the air brakes from the rear of the train. The switchman who rode on the front of the engine testified that he did not see anybody struck by the locomotive, but that when the train stopped after the accident he walked back on the ground to the rear of the train and back to the engine on top of the train, and that on the fourth car from the engine he found a blue cap. The cap found on the car was produced at the hearing, and a number of witnesses testified that it was not Wilhan's cap. Wilhan wore a dark blue suit, but was not otherwise identified as the boy seen climbing up on the car. The attending physician testified that Wilhan's body contained no bruises or evidence of any kind that it had fallen any distance. Other employés of plaintiff in error testified that the boy was very careful in his habits. As to whether Wilhan was the boy seen climbing up the side of one of the cars of the train was a controverted question of fact which is conclusively settled by the decision of the Industrial Board. The evidence fairly tended to show that the accident which resulted in Wilhan's death arose out of and in the course of his employment. The judgment of the circuit court is affirmed. SUPREME COURT OF ILLINOIS. R. F. CONWAY CO. V. INDUSTRIAL BOARD OF ILLINOIS ET AL. (No. 11212.)* 1. WORKMEN'S COMPENSATION-VERBAL "CLAIM" TO EM PLOYER-SUFFICIENCY. Where the employee asked his foreman and an attorney of the employer whether he was under the Compensation Act and they informed him that he was and assured him that his claim would be paid, there was a sufficient "claim" for compensation under Workmen's Compensation Act § 24, requiring claim for compensation within six months; as to ask for a right as due is to make a claim of that right. 2. INDUSTRIAL BOARD-JURISDICTION. Under Workmen's Compensation Act §§ 18, 19, providing that all questions of law and fact not settled by the parties shall be determined by the Board and section 6, taking from the employee all other right of action, failure of the employer to pay according to statute amounts to a denial of the claim for compensation and gives rise to a question for the determination of the Board. Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings before the Industrial Board on the application of Louis Koss, employee, for the adjustment of a claim against R. F. Conway Company, employer. Award of Industrial Board was confirmed upon certiorari to the circuit court, and the employer brings error. Affirmed. William McKinley, Luther F. Binkley, and Thomas C. Angerstein, all of Chicago, for plaintiff in error. Albert N. Powell. of Chicago. for defendants in error. DUNN, J. On January 21, 1915, Louis Koss filed with the Industrial Board an application for the adjustment of a claim. against the R. F. Conway Company for injuries received by him *Decision rendered, Feb. 20, 1918. 118 N. E. Rep. 705 |