a fence while going at the rate of sixty two miles per hour was an accident arising out of the employment."

An employee, whose duties as a solicitor required constant use of a motorcycle, which was furnished by his employer, was injured while trying out a motorcycle at the place of business of a dealer where his employer contemplated purchasing another motorcycle. It was held that, in assuming to act without any authority in this regard, the employee was acting outside the scope of his employment, and therefore his injury did not arise out of the employment."

§ 354. Tetanus.-A driver for a florist undertook to assist in the adjustment of a window box for a customer, and in doing so he fell from a ladder, causing a compound fracture of the thurab which resulted in tetanus and death. The court of appeals, in reversing a judgment, held that the accident did not arise out of the employment, for there was no causal connection between deceased's employment and the accident, for his duties did not in clude the adjusting of window boxes for customers."

A boy, sixteen years of age, was employed by the defendant to take up a floor. The work was finished in the forenoon, and in the afternoon, while decedent and other boys were looking for money in the dirt beneath the floor, he ran a nail into his foot causing tetanus and death. It was held that the death did not result from an accident arising out of the employment. Where death resulted from a similar injury received while the employee was at work, compensation was awarded."

An employee, whose duties included gathering dirt from the street, stepped on a rusty nail as he was getting into his wagon, and the wound became poisoned and death resulted from tetanus. The court in affirming an award for accidental death arising out of the employment, said: "The commission has found that one of

5. Lawson v. Stockton Motor Cycle and Supply Co., 2 Cal. I. A. C. 628. 6. Phillips v. Pacific Gas & Elect. Co., 2 Cal. I. A. C. 788.

7. Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053, 16 N. C. C. A. 645, rev'g 174 N. Y. App. Div. 901, 159 N. Y. S. 1115.

8. Davis v. Mais, Indiana Indus. Bd., (1915), 11 N. C. C. A. 506. 130 N. E. 517, (1921).

9. Snyder et al. v. Indus. Comm., - Ill.

the duties of deceased was going about the streets, shoveling dirt into his wagon. One of the necessary incidents of driving about the streets was getting on and off his wagon. While the danger of stepping on the nail may be said to have been common to all persons using the street, an injury therefrom to a mere passer along the street, not engaged in a hazardous employment, or in performance of an act incidental thereto, would probably not εfford a right to compensation under the act. The hazardous employment of the deceased required his continual presence upou the street in the discharge of the duties of his employment. The mere fact that a person not engaged in a hazardous employment was exposed to the danger of a similar injury, should he chance. to travel that way, furnishes no argument for a denial of the right of compensation to a person whose hazardous employment compelled his constant presence on the street."10

§ 355. Toxic Amblyopia.-A photographer suffered from toxic amblyopia, which was due to some poison taken into the body. He had been slightly burned about the head and face by an explosicu in the course of his employment, but his eyes were not injured thereby. It was held that there was no evidence to show that his condition was due to any accidental injury arising out of the employment.11

356. Tuberculosis.-An employee suffered an injury in the course of and arising out of the employment, which was of such a serious nature as to greatly impoverish his system and predispose it to an infection of tuberculosis, of which there was not the slightest indication before the injury. The court, in holding that the death was due to the accident arising out of the employment, said: "Where a workman receives personal injury from an accident arising out of and in the course of his employment, and disease ensues which incapacitates him for work, the incapacity may

10. Putnam v. Murray, 174 N. Y. App. Div. 720, 160 N. Y, S. 811, 15 N. C. C. A. 256.

Note: See § 252 ante.

11. Diehels v. Lasky's, (1916), 3 Cal. I. A. C. 351.

be the result of the injury, within the meaning of the (English) Workmen's Compensation Act, even though it is not the natural result of the injury. The question to be determined on a claim for compensation is whether the incapacity is in fact the result of the injury. Ystradowen Colliery Co. v. Griffiths, (1909), 2 K. B. 533. In a case where a petitioner's arm was broken while he was in defendant's employ, and the fracture properly united, but there developed an abscess upon the fleshy part of the thumb, which resulted in ankylosis, making the thumb useless, our Su'preme Court held that the ankylosis of the thumb was an injury arising by accident out of and in the course of the employment. Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928. And Mr. Justice Swayze, in writing the opinion in Liondale Bleach Works v. Riker, 85 N. J. Law, 426, at page 429, 89 Atl. 929, observed that the question of disease following an accident was considered in Newcomb v. Albertson, supra. The decision there, rested on certain English cases, is to the effect that an injury which follows an accident, and which, but for the accident, would not have happened, justifies the finding that the injury in fact results frora the accident.''12

An employee received abrasions on his leg and foot, as the result of an injury arising out of the employment, and alleged that a condition of tuberculosis was accelerated by the injury. The board found that there was no causal connection between the injury and the disease, and that the disease was not due to an injury arising out of the employment.13

A night watchman, predisposed to tuberculosis of the bones, fell while acting within the course of his employment and injured his knee. He was taken to a hospital and afterwards discharged. He returned to work and later the injury recurred, necessitating amputation of the leg which was affected with tuberculosis. In affirming the award for an injury arising out of the employment, the court said that the evidence clearly discloses that the disabili

12. Lundy v. George Brown & Co. (1919), 93 N. J. L. 107, 108 Ati. 252, 5 W. C. L. J. 294; Mass. (1920), 128 N.

E. 942, 7 W. C. L. J. 210.

13.

Glennon's Case,

McCarthy's Case, 120 N. E. 852, 231 Mass. 259, 3 W. C. L. J. 141.

ty was due to an injury arising out of and in the course of the employment. The fact that the employee may have been predisposed to tuberculosis of the bone is immaterial, as the evidence clearly shows that the tuberculosis of the left knee developed as a result of the injury.14

An employee was working on a crane when one of the timbers broke. He jumped into the river to save himself, and the exposure which resulted caused pulmonary tuberculosis. It was held that he suffered an accidental injury that arose out of and in the course of the employment.15

Where an employee received a blow over the spine which encited a preexisting tubercular condition to such virulent activity as to totally incapacitate the employee for work, the court, in affirming an award for accidental injury arising out of the employment, said: "Likewise the courts, consistent with the theory of workmen's compensation acts, hold with practical uniformity that, where an employee afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the injury materially aggravated or accelerated, resulting in disability or death earlier than would have otherwise occurred, and, the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the compensation acts."'16

§ 357. Typhoid Fever.-An employee received an injury in the course of his employment when a belt broke and struck him in the face. Later he was taken down with pneumonia and ty

14.

Wabash R. Co. v. Indus. Comm. 286 Ill. 194, 121 N. E. 569, 3 W. C. L. J. 435.

15. Rist v. Larkin & Sangster, 156 N. Y. S. 875, 171 App. Div. 71, 15 N. C. C. A. 688.

16. In re Bowers, In re Williams, In re Colan, 64 Ind. App. - 116 N. E. 842, 15 N. C. C. A. 633.

Note: For additional cases on this subject see § 254 ante.

phoid fever. The medical testimony was to the effect that the traumatic injury was likely to have caused the pneumonia. The court held that there was sufficient evidence to justify a finding that the pneumonia and typhoid fever were caused by the injury arising out of the employment, and that death was the direct result of these diseases."

Where an employee contracted typhoid fever as the result of drinking contaminated water furnished by the government, and it later developed into pneumonia and empyema, it was held that this was not an accident arising out of the employment.18

A nurse in a hospital contracted typhoid fever, but the evidence failed to show how or where she contracted the disease. It was held that the evidence failed to show that the typhoid fever was caused by or arose out of the employment.19

§ 358. Ulcers.-Where an employee splashed lye water in his eye, and a corneal ulcer developed, it was held to be an injury arising out of the employment.20

Where the evidence showed that ulcerative endocarditis was not caused by the accidental injury, compensation under the Federal Act was denied.21

§ 359. Unintentional Injury by a Fellow Employee.-Where an employee, while seeking instructions from another employee who was leaning over, placed his arm about the fellow employee's neck, and in doing so a pencil in the pocket of the employee seeking instructions pierced the eyeball of the fellow employee, the court held that the injury, though received in the course of the employment; did not arise out of the employment, for it resulted

17. Vogeley v. Detroit Lbr. Co., 196 Mich. 516, 162 N. W. 975, 15 N. C. C. A. 641.

18. Re Claim of Robert K. Potter, Op. Sol. Dep. C. & L. (1915), 172. 19. Tobin v. City & County of San Francisco, (1916), 3 Cal. I. A. C 314; Collins v. Oakdale Irrigation District, 3 Cal. I. A. C. 344.

Note: See same title § 256 ante.

20. Grimes v. The Red River Lbr. Co., 3 Cal. Ind. A. C. 66.

21. In re Carl A. Carlson, 3rd. A. R. U. S. C. C. 120.

Note: See § 257 ante.