cited, unless guilty of some affirmative act removing him therefrom, still in the course of his employment when death overtook him. The case was made one of a continuing employment, so that the burden of proving a cessation thereof fell upon the appellant. That burden was not successfully borne. Upon the question whether the accident arose out of the employment it is sufficient to cite authority for the proposition that accidents occurring to employees while traveling to and from their work in an automobile provided by their employer arise, not only in the course of the employment, but from hazards incident thereto. Matter of Little v. Fuller Co., 223 N. Y. 369, 119 N. E. 554. Therefore I think the award should be affirmed. ''81

The court in the syllabus to a recent Louisiana case said: "Where, under a contract of employment, an employee is carried forth and back, on a working train and is under the orders of his foreman, and is paid from the time that he boards the train in the mornings, until his return to the starting point, and detrainment, in the evening, and where, upon a particular occasion, the train is stopped upon the return trip and he gets off and renders a service required by the foreman, and, being ordered to get on again, loses his life in the attempt so to do, his parents in default of wife or child, become entitled, under Act No. 243 of 1916, amending and reenacting section 8 of Act. No. 20 of 1914, to recover compensation equal to 50 per cent, during 300 weeks, of the wages that he was receiving at the time of his death, and that, notwithstanding that the accident may have been attributable to the decedent's own negligence, or may have resulted from a risk, which under the general law of master and servant he might be held to have assumed.'

7782

81. Kowalek v. N. Y. Consolidated R. Co., (Dec. (1919), 179 N. Y. S. 637, 5 W. C. L. J. 434 10 App. Div. 160; Lannon v. Interborough Rapid Transit Co., 184 N. Y. S. 588, 7 W. C. L. J. 90; Indian Creek Coal Mining Co. v. Wehr, Ind.- (1920), 128 N. E. 715, 7 W. C. L. J. 47; Harrison v. Cent. Const. Corp., Md. App.-, 108 Atl. 874, 5 W. C. L. J. 534. 82. Farris v. Louisana Long Leaf Lbr. Co., La. 86 So. 670, 7 W. C. L. J. 292.

Employees who rode on a truck going a different way than the one upon which they were supposed to ride were not injured in the course of their employment.83

Death was not due to an accident arising out of the employment, where the day's work had terminated, before deceased boarded a boat, chartered at the expense of the government, for the purpose of leaving the yards, even though the place of his employment could not be reached otherwise than by boat, since the contract of employment did not contemplate that the time consumed in going to and coming from work should be included in the day's work.84

As a general rule an injury suffered by an employee while going to or returning from work does not arise out of the employment. An injury sustained while riding to the place of employment in a conveyance furnished by the employer in compliance with one of the terms of the contract of employment, for the use of employees, but in which the workman was not directed or required to ride, does not arise out of the employment, where it appears that the injury was received before, and not during, the hours of the workman's service, when his employer had no control over him and befor the beginning of the period covered by his wages.

85

§ 266. While Walking to and from Work. Where a railroad employee, who had neglected to bring his dinner with him as was his usual custom, received permission to go home for his dinner, and in proceeding along the right of way was struck and killed by a train, it was held that the relationship of employer and employee had ceased, and that the accident was not one arising out of or in the course of his employment. The employee was on a mission of his own and the fact that he was on the premises of

83. United Disposal & Recovery Co. v. Indus. Comm.; United Engineering Co. v. Same, (two cases), Ill. (1920), 126 N. E. 183, 5 W.

C. L. J. 682.

84. Rausch v. Standard Shipbuilding Corp., N. Y. 513, 6 W. C. L. J. 92.

85. Nesbitt v. Twin City Forge & Foundry Co.,

(1920), 181 N. Y.

Minn.- (1920), 177

N. W. 131, 6 W. C. L. J. 66; Strohl v. Eastern Penn. Rys. Co., -Pa. —

1921, 113 Atl. 62.

his employer was immaterial as this course was of his own choosing in preference to a road running in the same direction. The burden. of proof resting upon the party seeking to show the connection between the employment and the accident was not discharged.86

The master of a schooner was returning to his boat from ashore, where he went on business of the ship, when he stepped upon an orange peeling and fell, and permanently injured his hip. It was held that, while the injury arose in the course of the employment, it did not arise out of the employment, and compensation was denied.87

An employee was struck and injured by a train when going to his bunk house. There were two ways of reaching the bunkhouse, one of which was over the right of way which the employee chose of his own volition. It was held that this accident came within the settled rule that injuries sustained by an employee while going to or returning from his day's work, when there is no contract of transportation, are not to be regarded as arising out of or received in the course of his employment. ''88

Nor could the employer confer a right upon the employee to use tracks over which he had no control, where the employee was not paid for the time required to reach his home.89

An employee, while walking down a railroad on his way to the place of his employment, was injured by a train striking him. This was the usual route to work, and the employee's time began from the time he left home. It was held that the accident occurred when the deceased was on duty in the line of his employment, and that the accident arose out of the employment."

A car inspector was killed while crossing the track of another company. His time in emergency call began from the time he left

86. Hills v. Blair et al., 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409. 87. Chapman v. John Pearn (owners of), 9 B. W. C. C. 224, 12 N. C. C. A. 368.

88. Guastelo v. Mich. Cent. R. Co., 194 Mich. 382, 160 N. W. 484, 15 N.C. C. A. 241; Orsinie v. Torrance, Conn.

Mason v. Alexandre et al.,

89.

90.

Bell's Case, Mass.

(1921), 113

Conn.

(1921), 113 Atl. 925. (1921), 130 N. E. 67.

Atl. 924;

Porritt v. Detroit United Ry., 199 Mich. 200, 165 N. W. 674, 1 W. C. L. J. 397, 15 N. C. C. A. 241.

home and continued until he returned. On the occasion when the accident happened he was responding to an emergency call. În holding that the accident arose out of and in the course of the employment, the court said: "The decedent's work under the arrangement was emergency work, and its very character was such as to require him to report for duty at the earliest moment possible, and that he was doubtless expected to take the shortest and most direct route, though such route might expose him to dangers not present in one more circuitous, and, therefore, that his employer should be held to have anticipated such an accident as happened. ''1 Compensation was denied a widow for the death of her husband, who was killed on his way home from work. The employee chose to travel on the railroad instead of other ways which led in the same direction. The employer allowed pay for the time necessary in coming to and going from work. It was held that the accident did not arise out of and in the course of the employment, there being no evidence to indicate an agreement between the railroad company and the defendant as to the use of the railroad as a foot path by the latter's employees.92

Where an employee was injured while going to work, walking along a railroad, compensation was denied in the lower court, the judge holding that by walking along the railroad, when there were two less hazardous paths, the employee added peril to his employment. On appeal it was held that such choice on the part of the employee did not make the accident one not arising out of the employment.93

Compensation was denied for the death of an employee who was killed while passing along a railroad track, not in the "usual passage way of 8 ft. in width between the tracks," evidently going

92. Whittall v. Staveley Iron & Coal Co., Ltd., (1917), W. C. & Ins. Rep. 202, 15 N. C. C. A. 243; In re Fumiciello, 219 Mass. 488, 107 N. E. 349, 15 N. C. C. A. 245; Hadwin v. Shepherd, (1915), W. C. & Ins. Rep. 503, 15 N. C. C. A. 245; Mazeffe v. Kan. City Terminal Ry. Co., -Kan.-, (1920), 189 Pac. 917, 6 W. C. L. J. 159.

93. Fox v. Rees & Kirby, Ltd., 1916 W. C. & Ins. Rep. 339, 15 N. C. C. A. 243.

W. C.-34

to or from work, and it was held that the accident did not arise out of decedent's employment. It not having been shown that his employment required his presence on the track.94

An employee, who was engaged in work in an ice house, was drowned on his way home when he was crossing the ice pond, which was the most direct route to his home. The pond was on the premises of the employer and under his control. In affirming a judgment which found that the accident arose out of and in the course of the employment, the court said:"While the employee's work for the day had been finished and he was on his way home at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment even if he is not actually working at the time of the injury." The court said that the finding that the pond was in the control of the employer and that the crossing over it on the ice was "the reasonable and customary way" for deceased to reach his home, and that he and other employees who lived in the same direction "crossed it this way regularly," warranted the further finding that the injury occurred in the course of the employment.95

Where an employee, who was allowed to take work home, but was not required to do so, sustained injuries, by falling on ice when attempting to dodge an automobile while waiting to board a street car on his way to work, compensation was denied, the court holding that the accident did not arise out of nor in the course of the employment.96

Where an employee slipped and fell while walking from one placeof employment to another it was held that the accident arose out of and in the course of the employment. The court said: "It is enough to entitle a workman to compensation if he can say that on the occasion when he was injured by a peril of the street

94.

Siemientkowski v. Berwind White Coal Co., (N. J. L.) 92 Atl. 909, 14 N. C. C. A. 132.

95. In re Stacy, 225 Mass. 174, 114 N. E. 206, 15 N. C. C. A. 244. 96. Indus. Comm. of Colo. v. Anderson, (Colo.), 169 Pac. 135, 1 W. C. L. J. 305; In re Killian Delebar, 2nd A. R. U. S. C. C. 266; In re Alva J. Norman, 2nd A. R U. S. C. C. 276.