emaciated condition, while raking ashes from under the boiler in a stokehole of a steamer, received a heat stroke from the effect of which he died. In affirming a recovery in that case, Lord Loreburn stated:

"To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who has died from a heat stroke was by physical debility more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not. * ** In my mind this man died from an accident. What killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience in this instance had not taught. It was an unlooked-for mishap in the course of his employment. In common language, it was a case of accidental death."

Concurring in this opinion, Lord Ashbourne remarked:

"Was this an accident arising out of and in the course of his employment? With great deference to those who hold a contrary opinion, I can myself see no room for serious doubt on the subject. Everything was in the course of his employment and arising out of it. But for the boiler and the heat stroke, and the speedy exhaustion is caused, there would have been no accident. * * * Although a heat stroke may be called a disease, it is in this case, in my opinion, a disease directly caused by an accident arising out of or in the course of an employment, particularly dangerous to Williamson, in consequence of his weak state of health."

In the Morgan Case the workman was engaged as an ordinary seaman on board the steamship Zenaida, while the ship was at port off the Mexican coast. He was ordered to go over the side to paint the vessel. The heat was excessive, he was seized with sunstroke, and his health was impaired. The trial court was of the opinion that he was suffering from an accident which arose out of and in the course of his employment, and awarded compensation. Upon review the award was sustained, it being held that the case was governed by the decision in the Ismay Case.

There is a marked contrast between the sudden and violent effect of a sunstroke and the drinking of water infected with typhoid germs, as it requires days of time after the infection for the disease to develop, as held in State ex rel. Faribault Woolen Mills Co. vs. District Court of Rice County, 164 N. W. 810.

[2] Where the work and the conditions of the place where it is carried on expose the employee to the happening of an event causing the accident, there is no longer a risk to which all are exposed, and the result is an accident arising out of the employment. Andrews vs. Failsworth Society, 20 Times R. R. 429; State ex rel. Virginia & Rainy Lake Co. vs. District Court of St.

Louis County, 164 N. W. 585, and cases cited. Was decedent exposed to something more than the normal risk to which men, in general, engaged in manual labor upon the streets, are subjected in hot weather? If he was, then he was exposed to an extra danger arising out of his employment; and if that contributed to the accident, then the accident arose out of the employment. We are of the opinion that there was a substantial abnormally increased risk, owing to the character of the street coupled with its moist condition, which contributed to the cause of the accident.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

SUPREME COURT OF MINNESOTA.

STATE EX REL. NELSON

VS.

DISTRICT COURT, RAMSEY COUNTY, ET AL. (No. 20662.)

WORKMEN'S COMPENSATION-"ARISING OUT OF EMPLOY

MENT"-FREEZING.

The evidence is held to sustain a finding that the injury to the relator, a janitor, who was frozen in severely cold weather while shoveling snow from the sidewalks about a building, was an accidental injury "arising out of his employment" within the Workmen's Compensation Act (Gen. St. 1913, c. 84a).

Certiorari in Supreme Court by the State, on relation of C. N. Nelson, against the District Court, Ramsey County, and others, to review a judgment denying relator compensation under the Workmen's Compensation Act. Judgment reversed.

John I. Levin, of St. Paul, for Relator.

E. A. Prendergast, of Minneapolis, for Respondents.

DIBELL, C. Certiorari to the Ramsey County district court to review a judgment denying the relator compensation under the Workmen's Compensation Act.

The relator was employed by the Northwestern Telephone Exchange Company. While so employed he froze his big toe and the freezing resulted in the amputation of his leg. The injury was sustained in the course of his employment. The court * Decision rendered, Nov. 2, 1917. 164 N. W. Rep. 917. Syllabus by the

Court.

Vol. I-Comp. 7.

found that the freezing was not an accident. It found that it arose out of his employment. Since the trial we have held that freezing is an accident. State ex rel. Virginia & Rainy Lake Co. vs. District Court, 164 N. W. 585. If the finding that the freezing arose out of his employment within the meaning of the Compensation Act (G. S. 1913, § 8195) is sustained, the relator should have compensation and the judgment should be reversed; otherwise, he should not, and there should be an affirmance.

The relator was a janitor employed by the telephone company at its Midway Exchange in Merriam Park. His duties were the usual one of a janitor. Using his language, he was "required to keep the building clean, keep the fire going, shovel the snow off the sidewalk whatever time it was necessary-all such things that belong to a janitor to do." On February 22, 1916, he went to the building about 5 o'clock in the morning, attended to the fires, did some other little things about the buildings, and then started to shovel the snow from the sidewalks. There had been a heavy fall the night before. He had to shovel a 50-foot front and 140 feet back to the alley. The snow was two or two and one-half feet deep. The weather was very cold. The work of shoveling required perhaps one and one-half hours. While doing this work he went from time to time into the building to see to the fires and could go at any time he choose. These are the important facts.

In state ex rel. Virginia & Rainy Lake Co. vs. District Court, 164 N. W. 585, we held that the finding of the court that the freezing there involved arose out of the employment was sustained by the evidence. The workman was employed in the northern woods swamping, was several miles from camp, had no facilities for warming or protecting himself, and was peculiarly exposed to severely cold weather. The question whether the trial courts's finding was sustained was not difficult. The one presented by the record before us is. The direct authorities upholding findings in freezing cases are few. We cite those called to our attention. McManaman's Case, 224 Mass. 554, 113 N. E. 287 (stevedore unloading a steamer, exposed to greater cold than that to which one working in the open is ordinarily exposed; not. at liberty to stop work to protect himself); Days vs. S. Trimmer & Sons, 176 App. Div. 124, 162 N. Y. Supp. 603 (workman unloading coal from delivery wagon and carrying into houses of customers; coal wet and weather severely cold); Larke vs. John Hancock Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584 (insurance solicitor and collector required to travel in the open weather fifteen or twenty miles in very cold weather; made numerous calls; went in and out of heated houses); Canada Cement Co. vs. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 N. C. C. A. 982 (employee working at the bottom of a quarry pit in intense cold for long hours). In the Massachusetts case the court concluded that the finding that the workman was exposed to "materially greater danger and likelihood of getting frozen

than the ordinary person or outdoor worker" was sustained. In the New York case the court said that the Industrial Commission "was fully justified in finding from the evidence that the claimant, by reason of his employment in handling wet coal in the storm, was specially affected by the severity of the weather." The Connecticut case was, in the view of the court, "a clear case of an employee injured as a result of a greater exposure to the elements than persons in that locality are ordinarily subjected." In the Quebec case the court in the course of an extended discussion said:

"Thus, as a general principle, the employer is not responsible for damages caused to his workmen by lightning, storms, sunstroke, freezing, earthquake, floods, etc. These are considered as 'force majeure,' which human vigilance and industry can neither foresee nor prevent. The victim must bear alone such burden, inasmuch as human industry has nothing to do with it and inasmuch as the employee is no more subject thereto than any other person. * Every human being is liable to suffer from events in which he has no share of responsibility. There is here between the accident and the employment no relationship of cause and effect. Hence it cannot be said of such an accident that it arises out of or in the course of employment. But where the work, or where the conditions. under which it is carried on, expose the employees to the happening of a force majeure event, or contribute to bring it into play or to aggravate its effects, then we are no longer face to face with the sole forces of nature. This is no longer a risk to which everybody is exposed; this is a danger which threatens more particularly the employees who work under special conditions. Hence the occurring of a force majeure event under such circumstances is an accident arising out of the employment."

There are two cases in which findings that the freezing did not arise out of the employment were sustained. Warner vs. Couchman, [1912] A. C. 35, affirming [1911] 1 K. B. 351 journeyman baker delivering bread from his cart; weather cold and stormy; hands exposed to weather); Karemaker vs. S. S. Corsican, 4 B. W. C. C. 295 (seaman at work on his ship in harbor; handling frozen ropes; weather very cold, but not abnormally so). In the first the finding of the County Court that the workman was not exposed to more than the ordinary risk of those working in the open was sustained; and the Court of Appeal was "unable to see that there was any peculiar danger to which the applicant was exposed, beyond that to which that large section of population who are drivers of vehicles, or who otherwise engaged as out-of-door laborers are exposed." Emphasis was placed upon the thought that the question was one of fact. In the other the finding of the County Court was sustained with the suggestion that:.

"The liability to frost bite is one of the normal incidents to

which everybody is subjected by reason of the severity of the climate."

We find no other freezing cases. Cases involving sustrokes or heat strokes present a similar question. They are the subject of review in State ex rel. Rau vs. District Court, 164 N. W. 916, a heat stroke case, where the evidence is held such as to authorize a finding that the injury arose out of the employment. And we have held that the character of an employee's work may so expose him to the risk of injury by lightning that a finding of a casual connection is sustained. State vs. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344.

The trial court was justified in finding that to an appreciable extent the relator was more exposed to the risk of injury from freezing than the generality of workers and that the added risk was because of the character of his employment. The casual test of the law is satisfied; and without prolonging the discussion we hold that the relator's work so exposed him to freezing that the finding that it arose out of his employment is sustained. Judgment reversed.

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

ORLANDO

VS.

F. FERGUSON & SON. (No. 78.)*

1. WORKMEN'S COMPENSATION ACT-PARTIAL PERMANENT INJURY AWARD.

Under section 2 of the Workmen's Compensation Act in the case of a partial but permanent loss of usefulness of both hands, or arms, or feet, or legs, or eyes or any two thereof, the compensation shall bear such relation to the compensation therein provided for total and permanent disability as the partial but permanent disabilities collectively bear to total and permanent disability.

2. When the trial judge finds there was a 50 per cent loss of usefulness of each hand and 10 per cent of usefulness of one eye, he should then find what percentage of total and permanent disability the combined 50 per ment loss of usefulness of two hands and 10 per cent of one eye make and should then award as compensation that percentage of 400 weeks. It is not strictly a mathematical problem. It is not to be solved by adding up the fractional parts, but upon the basis of percentage of total and permanent disability reasonably found to be produced by the several injuries considered collectively and with due regard to their cumulative effect.

Appeal from Supreme Court.

Proceeding by Vito Orlando under the Workmen's Compensation Act to obtain compensation for personal injury, opposed by F. Ferguson & Son, *Decision rendered, Oct. 12, 1917. 102 Atl. Rep. 155.