right of way of an intrastate railroad, contracted ivy poisoning, resulting in blood poisoning and death. It was held that death

was due to an accident arising out of the employment.48

§ 342. Landslides & Snowslides.-A conductor was killed by a landslide, when he attempted to pass the slide in an endeavor to report the arrival of his train at the point where the track was blocked. It was held that the accident arose out of the employment.49

Where an employee of a Colliery Company in a mountainous district was killed by a snowslide, which was caused by very abnormal weather conditions, it was held under the British Colun.bia Act that the death was due to an accident which arose out of and in the course of the employment.50

§ 343. Lightning.-Deceased was employed by defendant, in Colt park, in the City of Hartford, in raking leaves. During a thunderstorm of considerable violence he took shelter under a nearby tree. While thus seeking shelter the tree was struck by lightning and he was killed. There was no protection provided for him in case of storms. The court, in holding that the death was due to an accident arising out of the employment, said: "There is a clear preponderance of scientific authority to the effect that there is a greater danger under a tree or in the open than when protected in a house. This is shown by statistics and by authoritative scientific dicta Notice is taken of the commonly known fact that nearly all of the persons in a community such as Hartford are protected by dwelling houses, business blocks, or factories in time of a violent thunder shower, and that the injured workman was subject to a greater hazard than that experienced by the community at large.

"If the place under the tree were the more dangerous, the fact that the deceased chose it as the place of refuge from the storm

48. Plass v. Central New England R. Co., 169 N. Y. App. Div. 826, 155 N. Y. Supp. 854, 11 N. C. C. A. 498.

49. Clark v. Northwestern Pacific R. R. Co., 1 Cal. I A. C. (part 2) 191, 7 N. C. C. A. 429.

50. Culshaw v. Crow's Nest Pass Coal Co., (1914), British Columbia Court of Appeal, 7 B. W. C. C. 1050.

and that he was injured at this place does not prevent recovery. The act of seeking and obtaining shelter arose out of, that is, was within, the scope or sphere of his employment and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from the violent storm was not only necessary to the preservation of the deceased's health, and perhaps his life, but was incident to the deceased's work, and was an act promoting the business of the master. L. R. A. 1916A, 348. See, also, Richard v. Indianapolis Abattoir Co., 92 Conn, 277, 102 Atl. 604, where it is said that-The plaintiff 'was injured while on duty, in his working hours, when waiting for an opportunity to continue his service of empolyment. The accident occurred when the plaintiff was at a place where he might reasonably be. There was no turning aside upon his part, no attempt to serve ends of his own.'

**

"A personal injury to an employee which is sustained while he is doing what he was employed to do, and as a proximate result thereof, 'arises out of and in the course of' his employment. An injury which is the natural and necessary incident of one's employment is proximately caused by such employment: as it is also when the employment carries with it a greater exposure to the injury sustained than the exposure to which persons generally in that locality are subjected. ''51

An employee, while operating a metal road grader, was killed by lightning during a storm. The District court, in reversing the action of the board, granted compensation on the theory that deceased's employment exposed him to a greater risk than that of the commonalty. On appeal this decision was reversed, the court saying: "The most diligent research on our part has failed to disclose any authority which supports the theory upon which this cause was decided by the court below; on the contrary, so far as they point to any conclusion respecting the subject, the authorities indicate quite clearly that the presence of the metal road grader could not have had any perceptible influence upon the lightning,

51. Chiulla De Luca v. Board of Park Commissioners of the City of Hartford, 94 Conn., (1919), 107 Atl. 611, 4 W. C. L. J. 595; State ex rel. Peoples Coal & Ice Co., v. District Court of Ramsey Co., 129 Minn. 592 153 N. W. 119, 9 N. C. C. A. 129.

and did not tend to increase the natural hazard of the deceased's employment. For this reason it cannot be said from this record that his death resulted from an accident arising out of his employment, as the term is used in our workmen's compensation act. ''52

Where a workman on a dam was struck by lightning during a storm, the court, in denying that the nature of deceased's employment exposed him to any unusual hazard not common to the public, said: "The court below in affirming the findings of the Industrial Commission, held that the Workmen's Compensation Act 'limits compensation to those cases in which the accident grows out of the hazards of industrial enterprises and is peculiar to such enterprises,' and further held that 'an injured employee is entitled to compensation when the industry combines with the elements in producing an injury by a lightning stroke,' and further found that it could not be said that there was not a substantial basis for the finding in the evidence taken before the commission. We are inclined to agree with the learned court below in its conclusions and judgment in the case. There was testimony in this case of an expert nature for the purpose of showing that the employment of deceased at the water's edge was peculiarly dangerous from exposure to lightning. The evidence does not convince the Commission to a moral certainty that the employment was extrahazardous in this regard. It is admitted that the action of lightning is extremely freakish; and, while it is more or less controlled by general law, there are so many different elements entering into its control that we do not think the evidence in this case established that the deceased was in any position of exceptional danger because of the possibilities of lightning stroke."'53

Where a bricklayer was killed by lightning while at work on a scaffold 23 feet above the level of the ground, the court, in allow

52. Wiggins v. Indus. Acc. Bd., 54 Mont. 335, 170 Pac. 9, 1 W. C. L. J. 643, 15 N. C. C. A. 696; Craske v. Wigan, (1909), 100 L. T. 8, 2 B. W. C. C. 35.

53. Hoenig v. Indus. Comm. of Wis., 159 Wis. 646, 150 N. W. 996, 8 N. C. C. A. 192; Kelley v. Kerry County Council, 42 Ir. L. T. 23, 1 B. W. C. C. 194, 8 N. C. C. A. 194; Thier v. Widdifield, Mich. N. W. 16, 6 W. C. L. J. 339.

(1920), 178

ing compensation and holding that death was due to an accident arising out of the employment, said: "If I come to the conclusion that, as a matter of fact, the position in which the man was working was dangerous, and that in consequence of the dangerous position the accident occurred, I could fairly hold that the accident arose out of the employment, Now, was it a dangerous position? Was the man exposed to something more than the normal risk which everbody, so to speak, incurs at any time and in any place during a thunderstorm? We know that lightning is erratic, and possibly no position and circumstances can afford absolute safety. But, if there is under particular circumstances in a particular vocation something appreciably and substantially beyond the ordinary normal risk, which ordinary people run, and which is a necessary concomitant of the occupation the man is engaged in, then I am entitled to say that that extra danger to which the man is exposed is something arising out of his employment.''54

Under the Utah Act, which does not require the accident to arise out of the employment, an employee, struck by lightning when he left his employment of roadwork to seek shelter, was entitled to compensation, for the injury occurred in the course of the employment, since the employee did not depart therefrom but was justified in seeking shelter from the fury of the elements.55 Where a section hand at the direction of his foreman sought shelter in a barn during a storm, and was killed by lightning, the court held that the nature of his employment did not subject him to any greater risks than the risks of the ordinary citizenry, and held that the accident did not arise out of the employment.56

§ 344. Mental Shock.-Where an employee received a personal injury arising out of the employment resulting in total disability, and it was contended that his disablity was due to a mental and

54. Andrew v. Failsworth Indus. Society Ltd., (1904), 2 K. B. 32, 73 L. J. K. B. 510, 90 L. T. 611, 20 T. L. R. 429, 68 J. P. 409, 52 W. R. 451, 6 W. C. C. 11, 8 N. C. C. A. 192.

Utah,

(1920), 190 Pac.

55. State Road Comm. v. Indus. Comm., 544, 6 W. C. L. J. 404; In re Jimmie Butte, 3rd A. R. U. S. C. C. 169. 56. Klaviniski v. Lake Shore & M. S. Ry. Co., Mich. 213, 8 N. C. C. A. 194.

152 N. W.

nervous condition instead of a physical breakdown, the court said: "The fact that appellee was suffering from a mental or nervous condition resulting from a physical injury, rather than from the physical injury itself, cannot have the effect of relieving appellant from liability. The court is committed to the doctrine that a 'personal injury,' as that term is used in the Workmen's Compensation Act, has reference not merely to some break in some part of the body, or some wound thereon or the like, but also to the consequence or disability that results therefrom. ''57

Where an employee, while aiding in the rescue of fellow employees, many of whom were killed in an accident, became insane, due to the mental and emotional shock caused by the accident, it was held that the insanity was due to an accident arising out of the employment.58

Where an employee fell from a scaffold injuring himself, from which he became subject to nervousness, the court held that the nervousness was due to an accident arising out of the employment.57

An elevator operator, imagining he saw a fellow workman about to be killed, suffered a stroke of paralysis, which caused his death. It appeared that the paralysis was due to a hemmorrhage of the brain which might have been caused by a diseased condition of the heart or by the mental shock arising from the exictement. It was held that such evidence was insufficient to prove that the paralysis and death was due to an accident arising out of the employment."

59

§ 345. Misunderstood Orders.-A woodsman misunderstood his instructions and worked at the wrong place. Upon discovering his mistake, he went to the proper place and worked so hard in preparing for the drive, which was to occur on the following day, that his feet perspired and were frozen. On appeal the court, in holding that the freezing of his feet was due to an accident arising out of the employment, said: "On the day in question

57. Kingan & Co., Ltd. v. Issam, (Ind. App.), 121 N. T. 289, 3 W. C. L. J. 276.

58. Indus. Acc. Comm. in Reich v. City of Imperial, 1 Cal. Ind. Acc. Comm. Dec., (1914), 337, 10 N. C. C. A. 479.

58. Keck v. Morehouse, 2 Cal. I. A. C. 311.

59.

Coslett v. Shoemaker, 38 N. J. L. J. 116, 10 N. C. C. A. 1046. See § 218 ante.