driveway of the barn for the night." Under the facts stated, he had, as had long been his custom, placed himself not far from the property, so that the noise made by trespassers might the more easily awaken him should he be asleep, and so that he could the more quickly reach the property should help be needed. The accident which caused Bollman's death was due to a hazard to which he would not have been exposed apart from his employment. The accident was the result of a risk which was reasonably incidental to the employment. We therefore hold that the death of Bollman was by accident arising out of his employment by Lewellen, see Chitty v. Nelson L. R. A. 1916A, 58, note; Moyse v. Northern Pacific R. Co., 41 Mont. 272, 108 Pac. 1062; Haller v. City of Lansing, 195 Mich. 753, 162 N. W. 335, L. R. A. 1917E 324.''77

§ 329. Frost Bites and Freezing.-A woodsman, misunderstood his orders and worked at the wrong place, and upon discovering his mistake went to the proper place and worked so much harder than usual in preparing for the next day's drive that his feet perspired and were consequently frozen. On appeal, the court, in holding that the injury was due to an accident arising out of and in the course of the employment, said: "Injury by freezing is certainly not peculiar to the industry in which the defendant Beaulieu was engaged. Did the nature of Beaulieu's employment expose him to a hazard from freezing which was substantially increased by reason of the services which he was required to perform. * On the day in question by reason of the mistake, the defendant Beaulieu worked harder than he ordinarily did, as a result of which his feet became wet from perspiration, a circumstance which made them much more susceptible to cold, and as a consequence thereof his feet were froze. It seems clear that the hazard to which the defendant Beaulieu was exposed was one which was incident to and can be fairly traced to his employment as a contributing cause, and that he would not have been equally exposed to such a hazard apart from his employment. If the defendant Beaulieu while engaged in his work had wet his feet by stepping into an open spring and the freezing had resulted there

*

from, it could scarely be claimed that the injury was not proximately caused by accident. In this case, the condition of his feet was due to extra exertion caused by reason of a misunderstanding as to or ders. Because there would be no logs for hauling in the morning, he was required to put forth an unusual and extra effort, which made him more susceptible to cold than he otherwise would have been. It is clear that the exposure of the defendant Beaulieu to injury by freezing was substantially increased by reason of the nature of the services which he was obliged to render. We think it must be held that the injury for which compensation was awarded was proximately caused by accident within the meaning of the act." 78

Applicant, an employee of a railroad construction company, worked in the open air from 7 a. m. until 5 or 6 p. m. when the temperature was about 60 degrees below zero. He was cutting a roadway and wore two pair of woolen socks, felt boots and rubbers. The felt boots were in bad condition. When he started to work in the morning his feet were in good condition and in the evening at the close of work they were frozen. In affirming judgement, the court said: "It seems to me to be a forgetting of the words of the statute 'arising out of his employment' to say that all persons engaged in similar work were subject to the same cisk. Admit that they were To say that applicant was not exposed to any more special risk than ordinary persons engaged in out-door work simply means that the applicant might be one of a large class of persons exposed to a risk arising out of their employment. You might as well say that a man working in a factory who was struck by a falling board or bar should be disentitled to compensation because all persons working in factories are liable to have that happen to them. Simply because you can discover or describe a class of workmen who are generally exposed to such a risk and find the applicant to be one of that class seems to me to be no valid reason for refusing him compensation or for saying that his injury did not arise out of his employment. People who are not employed at all do not kick around in the snow when

78.

Ellingson Lbr. Co. v. Indus. Comm. of Wis., 168 Wis. 227, 169 N. W. 568, 3 W. C. L. J. 215, 11 N. C. C. A. 1003.

it is 60 degrees below zero. People who are employed as waiters in a comfortable hotel are not exposed to frostbites. It was because he was so employed that the applicant was exposed to the risk, and I see no reason for excluding his case from the words of the statute because you can discover other people whose employment similarly exposed them. Upon that principle no man could recover if you could show that a group of other people were exposed in the course of their employment to similar risks."'70

"The court of cassation has held several times in France that as a rule the Statute of April 9th, 1898, does not cover accidents due to the forces of nature even though they occur in the course of the employment. Nevertheless if the employment has contributed to the bringing into play of these forces, or has provoked or aggravated its effects, then the accident falls within the statute, according to the court of cassation. Thus, as a general princip'e, the employer is not responsible for damages caused to his work men by lightning, storms sunstroke freezing, earthquakes, 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 an other person. This is, says Loubat (Le Risque Professional No. 504), what Mr. Lion Say called 'the great professional risk of humanity.' 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

79. Nikkiczuk v. McArthur, 9 Alta. 503, 28 Dom. L. 279, 15 N. C. C. A. 682.

under such circumstances is an accident arising out of the employ. ment." so

The judge

A seaman at work on his ship sustained a frostbite. found that the workman had not proved that the frostbite was due to any particular circumstance in connection with his employment or that he had been exposed to any unusual risk. It was held that the accident did not arise out of the employment.

81

§ 330. Gangerene Resulting From Injury.-Where a gatekeeper, on a road under construction, had his foot crushed while opening a gate to allow a truck to pass, and the foot became gangrenous, resulting later in the death of the gatekeeper, the court held that the accident arose out of and in the course of the employment. 82

§ 331. Glanders.—Where a stableman contracted glanders as the result of caring for a horse infected with that disease, the court, in denying that the death was due to an accident arising out of the employment, said: "Glanders cannot be differentiated from other diseases by the fact that ordinarily it is a disease which affects a horse rather than a human being, for it cannot matter whence the bacteria have proceeded which set up disease within the human body. Anthrax is a disease which commonly affects sheep and cattle, and is communicable from them to man, yet of the effects of anthrax it was said in Bacon v. U. S. M. A. Ass'n, supra: 'The difference between the cause of this condition and the causes of typhoid fever, tuberculosis, smallpox, scarlet fever, and such like diseases, is that this particular condition is caused by different bacilli from the others and they come in contact with

Mich

80. The Canada Cement Co. v. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 N.C. C. A. 982; Warner v. Couchman, L. R., (1911), 1 K. B. 351, 1 N. C. C. A. 51. See Savage v. City of Pontiac 183 N. W. 798. 81. Karemaker v. S. S. "Corsican" (owners of) 4 B. W. C. C. 295, (1911), 6 N. C. C. A. 708; Dorrance v. New England Pin Co., Conn. Super. Ct., 1 Nat. Comp. Journ., (1914), 23, 6 N. C. C. A. 709. Note: See § 192 ante.

82. Doherty v. Grosse Isle Tp., 205 Mich. 592, 172 N. W. 596, (1919), 18 N. C. C. A. 1030, 4 W. C. L. J. 222.

Note: See § 194 ante.

the skin or enter into its pores, while in the other cases they are generally breathed in.' Except that the bacilli differ, glanders does not differ from the diseases named in the quotation. We think that for legal purposes glanders is a disease which, when contracted without previous accidental injury occurring in the course of employment, cannot be classed under the Workmen's Compensation Law of this state as an accidental injury arising out of and in the course of employment. We therefore conclude that the question should be answered in the negative, the award reversed, and the claim dismissed." 83

§ 332. Heart Disease.-An employee, engaged in bailing scrap copper, was found dead near the baling press, with a completed bale of copper beside him, and there was no evidence of accident, but it was claimed that the heavy work deceased was doing hastened his death by heart and kidney disease. In holding that the death was not due to an accident arising out of the employment, the court said: "In this case there was no evidence tending to prove any accident or accidental injury to the deceased. There was no mark upon his person, and nothing from which it could be inferred that an accident had occurred, and it is not claimed that there was any accident, but only that the heavy work which he was doing in the ordinary course of his employment caused or hastened his death."' 84

A laborer slipped and fell against the lever of a machine he was operating, and received a blow over the heart, and in a few days died. A physician testified that a blow over the heart would cause acute disease, and in the case of deceased it brought on a condition known as pericarditis. The court held that, in consideration of all the evidence, there was a sufficient showing that the accident arose out of and in the course of the employment, and that such injury proximately caused his death.85

83. Richardson v. Greenburg, 188 App. Div. 248, (1919), 176 N. Y. S. 651, 4 W. C. L. J. 433.

84. Jakub v. Indus. Comm., (1919), 123 N. E. 263, 288 Ill. 87, 4 W. C. L. J. 153.

85. Bucyrus v. Townsend, 64 Ind. App. 117 N. E. 565, 15 N. C. C. A. 646, 1 W. C. L. J. 166; Insana v. Nordenholt Corp., 118 N. Y. S. 83, (1920), 6 W. C. L. J. 478.