In speaking on this same subject, the Supreme Court of Massachusetts said: "An injury may be said to arise out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the condition under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it 'arises out of' the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen 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. 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 con sequence.

In an Iowa case the court said: "But it does not suffice that he was injured while in the course of his employment. It must further appear that his injury arcre out of such employment. The defendants were bridge builders who had charge of construction. of county bridges in Story County. Deceased was employed by them. Decedent and others in such employment were by defendants lodged and boarded on the ground where the work was done. On the night of the accident the day's work had been finished, but the employees were in the boarding tent. They had got

555. 2 W. C. L. J. 661; State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176 151 N. W. 912; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458.

7. McNicols Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A. 306. See Milliken's case, 216 Mass. 293, 103 N. E. 898, L. R. A. 1916A, 337; Sanderson's In re, 224 Mass. 558, 113 N. E. 355. Continental Casualty Co. v. Indus. Comm.,- Cal. App.- (1920), 190 Pac. 849, 6 W. C. L. J. 434; Brown v. Bristol Last Block Co., Vt.-, (1920), 108 Atl. 922, 5 W. C. L. J. 628.

through washing the dishes and were sitting there until it was time to go to bed. While thus engaged the decedent came to his death from a stroke of lightning. Concede that he was in the course of his employment while thus in the tent awaiting his bed time, and still supervising other employees in getting ready for bed, and still there must be proof that the injury arose out of such employment. The burden is on the claimant. It is not discharged by creating an equipoise. It requires a preponderance. See Eisentrager v. Railway, 160 N. W. 311, L. R. A. 1917 B, 1245; In re savage Mass. 205, 110 N. E. 283.

"It is not enough for the applicant to say 'the accident would not have happened if I had not been engaged in this employment, or if I had not been in that particular place.' The applicant must go further and must say 'the accident arose because of something I was doing in the course of my employment, and becanse I was exposed by the nature of my employment to some peculiar danger.' In our opinion, the injury claimed for did not arise 'out of' decedent's employment.''s

In a Kentucky case the court expressed itself as follows: "Many of the courts in this country, as well as in England, have experrienced difficulty in determining when an accident arises 'out of' the employment. The words 'in the course of' employment have reference to the time, place, and circumstances while the words 'arising out of' the employment relate to the cause or source of the accident. The terms 'out of' and 'in the course of' are not synonymous, and if either of these elements is missing, there can be no recovery. The two questions are to be determined by dif ferent tests. The words 'out of' refer to the origin or cause of the accident, and the words 'in the course of' to the time place, and circumstances under which it occured. So it has been said that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises 'out of and in the course of the employment.' L. R. A. 1916 A., 232.

"In Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458, it was held that an accident arises 'in the course of the employment' if it oc

8. Griffith v. Cole Bros. 183 Ia. 415, 165 N. W. 577, 1 W. C. L. J. 368.

curs while the employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed and at a place where he may reasonably be during that time, and it arises 'out of' the employment when it is something the risk of which may have been contemplated by a reasonable person, when entering the employment, as incidental thereto."

Further light may be thrown on this subject by giving the view of the Ohio commission interpreting the class of act wherein it is necessary only for the injury to occur "in the course of the cmployment." "We have had occasion to consider the meaning of the words 'in the course of employment' as they are employed in the above-mentioned sections in a number of claims heretofore decided by us, and we have held repeatedly that in order to be compensable, the injury need not result from an accident if the injury is sustained while the employee is in the performance of services which he was employed to perform by his employer. It is true that we have not considered death from natural causes while in the course of employment, an injury sustained in the course of employment, and in claim No. 35163, where an employee was attacked by apoplexy or cerebral hemorrhage, from the effects of which he died, and where it appeared that the attack was not brought on by any extraordinary or unusual exertion on the part of the employee, we held that the death was due to natural causes and not to an injury in the course of employment. But the death of Anna Schwenlein was not due to natural causes. It was due to the malicious and felonious act of a fellow employee. That it was due to an injury cannot be questioned. The injury was sustained while the deceased was at work. We conclude that her death was caused by an injury while in the course of employment. ''10

In the conclusion the court in the Iowa case, supra, quotes with approval the following from page 73 Corpus Juris (W. C.): "In

9. Hollenbach Co. v. Hollenbach, 181 Ky., 262, 204 S. W. 152, 2 W. C. L. J. 493; See, also, Feda v. Cudahy Packing Co., 102 Nebr., 110, 166 N. W. 190, 1 W. C. L. J. 649; Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Nebr. 321, 156 N. W. 509.

10. In re Schwenlein, 1 Bull. Ohio Ind. Com. 136.

determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant circumstances: and it has indeed been stated rather broadly but by eminent authority that argument by analogy is valueless."'11

Where an employee was killed by being struck with a bar of iron, which was pushed from the floor above by a workman in the employment of another contractor on the same building, the court said: "It remains to be considered whether the accident arose both 'out of and in the course of his employment.' For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental to the employment. As was said by Buckley, L. J., in Fitzgerald v. Clarke & Son, (1908), 2 K. B. 796, 77 L. J. K. B. 1018. "The words "out of” point, I think, to the origin and cause of the accident; the words "in the course of," to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as convey by the words "out of, involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment. 'We conclude, therefore, that an accident arises 'in the course of the employment' if it occurs while the enployee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time. That the findings of fact in the present case justified the conclusion that the accident to Bryant occurred 'in the course of' his employment is beyond dispute. We are also of opinion that the conclusion of the common pleas judge that the accident arose 'out of' the employment was likewise justified. We conclude, therefore, that an accident arises 'out of the employment when it is something the risk of which

11. Kitchenham v. Steamship Johennesburg, (1911), A. C. 417, 27 T. L. Rep. 504, 4 B. W. C. C. 311; Blair v. Chilton, 8 B. W. C. C. 324; Dietzen & Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684.

might have been contemplated by a reasonable person, when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment. 12.

The English writer Ruegg succinctly summarizes as follows the law on this subject, in the 8th edition of his work on Employers' Liability and Workmen's Compensation, p. 373-374: "1. That the onus of proving both that the accident arose out of and in the course of the employment, rests upon the applicant. 2. That the accident does not arise out of and in the employment if it is caused by the workman doing something entirely for his own purposes; or 3. The same result follows when the workman does something which is not part of his duty towards his employer, and which he has no reasonable grounds for thinking it was his duty to do. 4. The accident may arise out of and in the course of the employment, if the act which occasioned it, although not strictly in the scope of the workman's employment, is done upon an emergency. 5. It may be said to arise out of the employment if, it being the workmen's duty to do the act, the accident arises from his doing it in an improper manner. 6. It may arise out of and in the course of the employment, if occurring on the employer's premises, when the workman has not actually commenced his work, or after he has finished. 7. It may arise out of and in the course of the employment if, the workman's duties not being clearly defined, he may reasonably have thought it a duty to do the thing in the course of which the accident occurred. 8. It does not arise out of and in the course of the employment, if occasioned by the wilfully tortious act of a fellow servant, when the risk of such an act cannot be said to be one of the risks incidental to the service. 9. It may arise out of and in the course of the employment if, though occasioned tortiously, even wilfully, by the act of a third

12. Bryant v. Fissell, 84 N. J. L. 42, 86 Atl. 458, 3 N. C. C. A. 585.