injured, such injury has been held to arise out of the employment.9

If the act which caused the injury was within the scope of the servant's employment, the mere fact that he had been expressly forbidden to do that act will not necessarily be fatal to his claim. There have been great difficulty and much conflict of opinion in applying this principle. Frequently the disobedience to a command amounts to "serious and wilful misconduct," but under § 1, subs. 3, that factor is disregarded where the injury "results in death or serious and permanent disablement," and in any event does not affect the question here involved, namely, whether the injury arose out of and in the course of the employment.10

river was by use of a boat, and the workman fell out of the boat and was drowned as he was crossing in the usual manner, his death was caused by accident arising out of and in the course of the employment. Nole v. Wadworth [1913] W. C. & Ins. Rep. (Eng.) 160, 6 B. W. C. C. 129.

The essential point to be determined is whether the servant was actually doing the work he was employed to do, or whether he was doing something substantially different. In the former case, numerous decisions support the view that mere disobedience to orders does not take him outside the statute. In a leading case taking this view, a workman whose duty it was to oil machinery was killed while attempting, contrary to orders, to oil it while it was in motion.11 In such a case it is plain that the workman was actually doing the work which he was employed to do. In another case a boy sat down to do his work, contrary to express orders.12 In yet another case, a workman forbidden to touch machinery attempted to replace the belt, which it ton, L. R., in Watkins v. Guest (1912) 5 B. W. C. C. (Eng.) 307.

11 Mawdsley v. West Leigh Colliery Co. (1911) 5 B. W. C. C. (Eng.) 80.

12 A boy engaged in rolling ventilator tires, who knew that it was forbidden to sit down while engaged in the work, was nevertheless not out of his employment in sitting down to his work, and is entitled to

An arbitrator is not precluded from finding that an accident arose out of and in the course of the employment because the workman when injured was leaving the premises by a route other than the customary one, where there was no express order forbidding the use of such route, and other employees customarily used it M'Kee v. Great Northern R. Co. (1908) 42 Ir. Law Times, 132, 1 B. W. C. C 165.

9 Where a miner, in descending, left the cage by mistake before it reached the level at which he was working, and, on finding that the cage had resumed its descent, went down to the next level, and for some unexplained reason proceeded 600 or 700 feet along a road leading in the opposite direction from the road leading to his work, and there met his death by scalding from the exhaust steam from a pump. Sneddon v. Greenfield Coal & Brick Co. [1909-10] S. C. 362, 47 Scot. L. R. 337, 3 B. W. C. C. 557 (unavoidable inference was that he had lost his way, and blundered into the place where he was injured).

10 "We have the difficulty of finding out a line between something that takes the accident entirely out of the employment, and something which within the employment is a serious and wilful misconduct which leads to accident." Fletcher Moul

R. (Eng.) 437, [1915] W. N. 203, 8 B. W. C. C. 1. In the court of appeal, CozensHardy, M. R., said: "It is well established that a workman who is seriously and permanently disabled by an accident may recover compensation if he was doing the work he was employed to do, though doing it negligently and contrary to rules laid down. On the other hand, a workman cannot recover compensation if he was not doing the work he was employed to do, but was doing something substantially different, although intended to produce the same result. An instance of the first class is where a man's duty was to oil machinery, and he was told not to do it when the machinery was in motion. He did it while the machinery was in motion. The employ

er

was held liable, although there was serious and wilful misconduct. An instance of the second class is found in the recent case of the House of Lords of Plumb v. Cobden Flour Mills Co. [1914] A. C. (Eng.) 62, 83 L. J. K. B. N. S. 197 [1914] W. C. & Ins. Rep. 48, 109 L. T. N. S. 759, [1913] W. N. 367, 51 Scot. L. R. 861, 30 Times L. R. 174, 58 Sol. Jo. 184, 7 B. W. C. C. 1, Ann. Cas. 1914B, 495, where a man whose duty it was to pile up sacks by hand, took upon himself to rig up some machinery to lift them. It was held, affirming this court, that he had taken himself out of his employment." SwinfenEady, L. J., said: "In one sense the injury

was necessary for him to do in order to do his own work.13 In the note below there will be found numerous other cases applying the principle that mere diswas caused by an added peril which the boy took upon himself, a peril which his contract of service did not oblige him to encounter; but, on the other hand, the added peril did not take the boy away from the very work he was engaged to perform; it added danger to the performance of that work." Pickford, L. J., said that the boy "was actually turning the wheel which it was his duty to turn, at the moment when the accident happened, but he was doing it while sitting down, which was forbidden, instead of standing up, as was his duty, with the result of making an ordinary incident of his work a danger to him which it would not otherwise have been," and that this was "doing his work in a wrong way, but not doing something outside the sphere of his employment."

13 Recovery has been allowed where a carpenter, part of whose duty was to sharpen his tools on a grindstone rotated by machinery, had been forbidden to touch the machinery, and was injured while endeavoring to replace the belt, which started the grindstone after it had slipped. Whitehead v. Reader [1901] 2 K. B. (Eng.) 48, 84 L. T. N. S. 514, 70 L. J. K. B. N. S. 546, 65 J. P. 403, 49 Week. Rep. 562, 17 Times L. R. 387, 3 W. C. C. 40, Romer, L. J., said: "I am not able to gather from the facts of the case that the replacing of the band was an act on the workman's part so remote from his ordinary duties that it could not be fairly said to be one arising out of and in the course of his employment. It is not the case of a workman whose duties in no way bring him into contact with his master's machinery, officiously or for his own purposes meddling with that machinery contrary to orders, and so being injured."

14 Recovery has been allowed where a workman employed to inspect scrap iron consigned to his employers at various railroad stations, was in the course of his duty, returning from such an inspection to the warehouse, and attempted to cross, contrary to rules, the lines of the railroad while shunting operations were in progress, and was killed. Sanderson v. Wright (1914) 110 L. T. N. S. (Eng.) 517, 30 Times L. R. 279, [1914] W. C. & Ins. Rep. 177, 7 B. W. C. C. 141.

And where a workman employed by the defendants to attend to a steam engine within a shed, and to a mortar pan outside the shed, worked by the steam engine and used to grind mortar for a building, was caught in a revolving shaft, as a result of his entering the shed by a door which he had been forbidden to use. McNicholas v. Dawson [1899] 1 Q. B. (Eng.) 773, 68 L. J. Q. B. N. S. 470, 80 L. T. N. S. 317, 47 Week. Rep. 500, 15 Times L. R. 242.

obedience to rules does not take the workman outside the provision of the act.14 Of course if the forbidden act is done in an honest attempt to further up tools, and by which the men were prohibited to ascend, the boy being so startled when the collier reached the top that he let go. Douglas v. United Mineral Min. Co. (1900) 2 W. C. C. (Eng.) 15.

And where the second engineer lit a fire in his cabin during the night in violation of orders, but it was found that as matter of fact some fire was necessary owing to the intense cold. Edmunds v. The Peterston (1911) 28 Times L. R. (Eng.) 18. A collier did not go outside of his employment merely because he went from a place where he had been directed to work to another place about three yards distant where he was injured, although he had been warned not to work at the latter place because it was dangerous. Jackson v. Denton Colliery Co. [1914] W. C. & Ins. Rep. (Eng.) 94, 110 L. T. N. S. 559, 7 B. W. C. C. 92.

The fact that a miner goes into a forbidden area to get a pick needed by him in his work does not take him out of his employment. Conway v. Pumpherston Oil Co. [1911] S. C. 660, 48 Scot. L. R. 632, 4 B. W. C. C. 392.

It may be found that an injury by accident to a groom who was thrown from a horse arose "out of and in the course of" his employment, although there was evidence that he had been told to lead, and not to ride, the horse. Wright v. Scott (1912) 5 B. W. C. C. (Eng.) 431.

The engineer of a trawler who was injured when it was blown up by a mine laid by an enemy is entitled to compensation, although the shipper had taken the wrong course and entered an area against which he had been warned, where at the time of the explosion he was on his way to warn war vessels of the mines. Risdale v. The Kilmarnock [1915] 1 K. B. (Eng.) 503, 84 L. J. K. B. N. S. 298, [1915] W. C. & Ins. Rep. 141, 112 L. T. N. S. 439, 31 Times L. R. 134, 59 Sol. Jo. 143, 8 B. W. C. C. 7.

A pikeman in a mine, whose duty it was to light the fuses, was not acting outside the scope of his employment in firing charges at a particular time, although he had been told by the fireman in charge to await further instructions before firing them. Corbett v. Pitt (1915) 8 B. W. C. C. (Eng.) 466.

A workman is not necessarily acting outside of the scope of his employment while he is acting contrary to a rule, where such rule is habitually violated. McGuire v. Gabbott (1915) 8 B. W. C. C. (Eng.) 555.

the master's business, the case affords a better opportunity for the application of the principle stated above.1

Where, however, the prohibited act is one lying wholly outside of the sphere ing the Barnes Case (Eng.) (see note 18, infra) said that it really was not quite the same as though the collier had ridden all the way on the footboard. This decision seems to be very near the line. Buckley, L. J., dissenting, said: "It seems to me that this man, who was rightly traveling by train, was adding by his own conduct an additional peril by getting out of the carriage and placing himself on the footboard, ready to alight, and then in some way, we do not know how,-in that state of things, he slipped and fell and his hands were cut off by the moving train. That was a risk which did not in any way, to my mind, arise out of his employment; it arose from the fact that he, rightly traveling by train for the purpose of his employment, took a step which added a peril which had nothing to do with his employment at all, which he need not have faced for any purpose of his employment. I think, under these circumstances, the accident did not arise out of his employment, but arose out of his own conduct in doing something which was not wanted for the purpose of his employment, and was not done for the purpose of his employment, but which was a peril which he voluntarily added."

Where a miner was injured by the explosion of a shot by a shot firer after the miner had coupled the charge to the cable in direct violation of orders, and before he could get to a place of safety, it was held that his injury did not arise out of and in the course of his employment. Smith v. Fife Coal Co. [1913] S. C. 663, [1913] W. C. & Ins. Rep. 343, 50 Scot. L. R. 455, 6 B. W. C. C. 435. It is difficult to find reasonable support for this decision. The miner had completed the connection, and it would seem that the only cause of the accident was the firing of the shot by the shot firer before the miner could get to a place of safety. It certainly could be strenuously argued, were the action at common law, that the accident was the result of the shot firer's act, and not of the contributory negligence of the miner in violating the orders, and this seems to be the view of Lord Dundas, for in writing the opinion he says: "He [the arbitrator] seems to me to have approached the matter from a wrong standpoint, and to have decided it having regard to the common-law rules of liability and contributory negligence, which are, I think, wholly beside this question under the workmen's compensation act." This rule apparently places a greater burden upon the workman than he would have to bear under the common law, for an act of contributory negligence not sufficient to bar a recovery at common law is held to be outside of the employment, under the act. It is to be noted

16

was

of his employment, no recovery is allowable; as, where the workman goes into a place where he has been forbidden to go and where his duties do not call him,17 or where he is, contrary to orders, that the House of Lords, in a decision rendered after the above criticism written, held that the essential cause of the accident was not the unauthorized assumption of duty by the miner, but the premature firing of the shot, and that the arbitrator's finding that the miner was entitled to compensation should be upheld. [1914] A. C. (Eng.) 723, 83 L. J. P. C. N. S. 1359, 111 L. T. N. S. 477, [1914] S. C. 40, 51 Scot. L. R. 496, [1914] W. C. & Ins. Rep. 235, 30 Times L. R. 502, 58 Sol. Jo. 533, [1914] W. N. 196, 7 B. W. C. C. 253). 15 Although a collier in going into a dangerous working in disobedience to the colliery special rules, and against the warnings of a fireman or overlooker, was guilty of "serious and wilful" misconduct, yet if he did so in an honest attempt to further that which he was instructed to effect, his dependents may secure compensation for his death, which resulted from such act. Harding v. Brynadu Colliery Co. [1911] 2 K. B. (Eng.) 747, 80 L. J. K. B. N. S. 1052, 105 L. T. N. S. 55, 27 Times L. R. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269.

See also Whitehead v. Reader (Eng.) cited in note 13, supra.

16 In Kerr v. Baird [1911] S. C. 701, 48 Scot. L. R. 646, 4 B. W. C. C. 397, where a miner attempted to fire a shot in a mine, which it was not his duty to fire, the Lord President said: "I think it is quite clear that in this case the accident did not occur whilst the injured man was performing his ordinary work, but whilst he was arrogating to himself duties which he was neither engaged nor entitled to perform."

In Barnes v. Nunnery Colliery Co. [1912] A. C. (Eng.) 44, 5 B. W. C. C. 195, Lord Atkinson said: "In these cases under the workmen's compensation act a distinction must, I think, always be drawn between the doing of a thing recklessly or negligently which the workman is employed to do, and the doing of a thing altogether outside and unconnected with his employment. A peril which arises from the negligent or reckless manner in which an employee does the work he is employed to do may well be held in most cases rightly to be a risk incidental to his employment. Not so in the other case."

17 No recovery is allowable where a girl engaged in passing sheaves undertook, in disobedience to an express prohibition, to step across the opening through which they were fed, merely for the purpose of speaking to a friend, and without any necessity arising out of the work. Callaghan v. Maxwell (1900) 2 Sc. Sess. Cas. 5th series, 420, 37 Scot. L. R. 313, 7 Scot. L. T. 339.

Where a brakeman was injured by jumping off the seat of a lorry, where he had been expressly forbidden to go, and where

Where a miner's body was found among the débris after a shot had been fired in a place where he had been forbidden to go, and no reason was shown for his being there. Traynor v. Addie (1911) 48 Scot. L. R. 820, 4 B. W. C. C. 357.

Where a workman engaged to dig flints goes, contrary to orders, into a deep trench. Parker v. Hambrook [1912] W. N. (Eng.) 205, 107 L. T. N. S. 249, 56 Sol. Jo. 750, [1912] W. C. Rep. 369, 5 B. W. C. C. 608, Ann. Cas. 1913C, 1.

Where a miner was killed at a place in the mine where he had been positively forbidden to go. Tomlinson v. Garratts [1913] W. C. & Ins. Rep. (Eng.) 416, 6 B. W. C. C. 489.

Where a messenger boy employed at a goods station attempted to cross the track at night for his own purposes and contrary to orders, and was struck and killed by a passing engine. McGrath v. London & N. W. R. Co. [1913] W. C. & Ins. Rep. (Eng.) 198, 6 B. W. C. C. 251.

An accident caused by a workman going into place where he has been forbidden to go does not "arise out of" the employment. Powell v. Lanarkshire Steel Co. (1904) 6 Sc. Sess. Cas. 5th series (Scot.)

1039.

A miner who, after he had been suspended, was directed to go to a certain part of the mine, is not entitled to compensation for injuries while remaining in the place which he had been told to leave. Smith v. South Normanton Colliery Co. [1903] 1 K. B. (Eng.) 204, 72 L. J. K. B. N. S. 76, 67 J. P. 381, 51 Week. Rep. 209, 88 L. T. N. S. 5, 19 Times L. R. 128.

A cook on a trawler was not acting within the course of his employment in returning to the trawler at 11 o'clock at night, where the undisputed evidence was that he had been forbidden to sleep on the trawler at night. Griggs v. The Gamecock [1913] W. C. & Ins. Rep. (Eng.) 122, 6 B. W. C. C.

15.

18 As where a boy at work in a colliery in disobedience to orders got in a tub that was being hauled on an endless chain. Barnes v. Nunnery Colliery Co. [1910] W. N. (Eng.) 248, 45 L. J. N. C. 757, affirmed in [1912] A. C. (Eng.) 44, 81 L. J. K. B. N. S. 213, 105 L. T. N. S. 961, 28 Times L. R. 135, 56 Sol. Jo. 159, [1912] W. C. Rep. 90, [1911] W. N. 251, 5 B. W. C. C. 195, Earl Loreburn, L. C., said: "You cannot say that this boy was employed to be prudent and cautious, and therefore deny him compensation if, by reason of his want of prudence and caution, he meets with an accidental injury. Nor can you deny

Where a miner is injured while he is riding on a tub in violation of orders. Bates v. Mirfield Coal Co. [1913] W. C. & Ins. Rep. (Eng.) 180, 6 B. W. C. C. 165.

Where a brusher in a mine, in violation of a known rule, jumper in a hutch that was being taken to the bottom of the mine. Kane v. Merry [1911] S. C. 533, 48 Scot. L. R. 430, 4 B. W. C. C. 379.

Where a collier who, in going from one part of the mine to another, rode, contrary to orders, on the coupling between two trams, and was injured while so riding. Powell v. Bryndu Colliery Co. (1911) 5 B. W. C. C. (Eng.) 124.

Where a workman tried to get on a moving train contrary to orders merely to get a lift home. Pope v. Hill's Plymouth Co. (1910) 102 L. T. N. S. (Eng.) 632, 3 B. W. C. C. 339, affirmed in (1912; H. L.) 105 L. T. N. S. (Eng.) 675, [1912] W. C. Rep. 15, 5 B. W. C. C. 175.

A boy employed as a shunter on a private line of railway connected with some private works, whose duty it was to keep a lookout by walking in front of the wag ons as they were being shunted or moved, and who was injured while riding on the wagon, which he was forbidden to do, exposed himself to a new and added peril not incident to his employment and is not entitled to compensation. Herbert v. Fox [1915] 2 K. B. (Eng.) 81, 84 L. J. K. B. N. S. 670, [1914] W. C. & Ins. Rep. 154, [1914] W. N. 44, 59 Sol. Jo. 249, 8 B. W. C. C. 94.

A message boy who, in using a hoist to carry him to the third floor of a building where it was his duty to go, instead of walking up the stairs, knowingly violates his orders, is outside the course of his employment. McDaid v. Steel [1911] S. C. 859, 48 Scot. L. R. 765, 4 B. W. C. C. 412.

A collier may be found to have been injured by accident arising out of and in the course of his employment, where he received the injury by riding on a tub, although such an act was forbidden, but there was no evidence that the colliers knew of the prohibition, and the fireman whose duty it was to enforce the rules permitted the men to ride on the tub when they could. Richardson v. Denton Colliery Co. [1913] W. N. (Eng.) 238, [1913] W. C. & Ins. Rep. 554, 109 L. T. N. S. 370, 6 B. W. C. C. 629.

19 Where a person employed in a factory to do purely unskilled labor, and expressly forbidden to touch any of the machinery,

A servant does not cease to be in the course of his employment, merely because he is not actually engaged in doing what is specially prescribed to him, if, in the course of his employment, an emergency arises, and, without deserting his employment, he does what he thinks necessary for the purpose of advancing the work in which he is engaged in the interest of his master.20 In several dewas injured while attempting, in violation | of such orders, to clean a machine. Lowe v. Pearson [1899] 1 Q. B. (Eng.) 261, 68 L. J. Q. B. N. S. 122, 47 Week. Rep. 193, 79 L. T. N. S. 654, 15 Times L. R. 124. Where a boy employed to piece broken ends of yarn is injured while cleaning machinery, which he had been forbidden to do. Naylor v. Musgrave Spinning Co. (1911) 4 B. W. C. C. (Eng.) 286.

Where a driver of a canal boat violated the orders of his employer, and attempted to steer the boat, and was drowned while steering. Whelan v. Moore (1909) 43 Ir. Law Times, 205 (the desertion of another boatman created no emergency justifying the disobedience).

Where a baker in a steam bakery was killed while starting an engine which he had been forbidden to start. Marriott v. Brett (1911) 5 B. W. C. C. (Eng.) 145. Where a workman who, after being warned not to touch a switchboard, deliberately does so, and is injured. Jenkinson v. Harrison (1911) 4 B. W. C. C. (Eng.)

194.

Where a liftman who was forbidden to

oil the lift was injured while attempting to oil it. Dougal v. Westbrook [1913] W. C. & Ins. Rep. (Eng.) 522, 6 B. W. C. C. 705.

A miner who attempts to convey wood in a mine by means of a wheel brae which he had been forbidden to use, and is fatally injured, does not suffer injury by accident arising out of his employment, if he thereby exposes himself to a risk which his ordinary employment does not call on him to face. Burns v. Summerlee Iron Co. [1913] S. C. 227, 50 Scot. L. R. 164, [1913] W. C. & Ins. Rep. 45, 6 B. W. C. C. 320.

An accident to a boy while he is play ing with certain pinion wheels which he has been forbidden to touch does not arise "out of and in the course of" his employment. Furniss v. Gartside (1909) 3 B. W. C. C. (Eng.) 411.

A workman who, contrary to orders, attempts to clean machinery while it is in motion, and is injured, does not suffer injury by accident arising out of his employment. M'Diarmid V. Ogilvy Bros. [1913] W. C. & Ins. Rep. 537, 50 Scot. L. R. 883, 6 B. W. C. C. S7S. The Lord President said that the mere disregard of the prohibition would not prevent a recovery, but what distinguished this case from the Mawdsley Case (note 11, supra) was the fact that there were certain prescribed times for cleaning the machinery,

cisions it has been held that a workman injured while attempting to rescue another workman who is in danger is entitled to compensation, where the danger to which the other workman is subjected is incurred in the course of the employment.21 But the rule is otherwise where the dangerous situation does not arise out of and in the course of the employment. As, where an employee, goes to and the workman was trying to do it at some other time. He further said: "Now in this case the workman had no general employment to clean the machine, but a special employment to clean the machine for an hour early on the morning of Tuesday, and an hour early on the morning of Friday, when special preparations were made. What I wish to say is this, that the workman could be under no mistake as to whether he was doing his duty. He could not think he was doing the duty of a Tuesday or a Friday morning; he was doing something on another day which he knew was not his duty."

20 Durham v. Brown Bros. (1898) 1 Sc. Sess. Cas. 5th series, 279, 36 Scot. L. R. 190, 6 Scot. L. T. 239.

Recovery was also allowed where a carter in the employment of a railway company was injured while he was endeavoring to stop a horse which had suddenly started off, from some unexplained cause, with the cart. Devine v. Caledonian R. Co. (1899) 1 Sc. Sess. Cas. 5th series, 1105, 36 Scot. L. R. 877, 7 Scot. L. T. 99.

In Rees v. Thomas [1899] 1 Q. B. (Eng.) 1015, 68 L. J. Q. B. N. S. 539, 47 Week. Rep. 504, 80 L. T. N. S. 578, 15 Times L. R. 301, recovery was allowed where a fireman employed in a coal mine was, in of the state of the mine from the pit's the course of his duty, carrying a report mouth to the office, and the horse drawing the tramway truck in which he was riding ran away, and in endeavoring to stop it he fell and was killed. Lowe v. Pearson [1899] 1 Q. B. (Eng.) 261, 68 L. J. Q. B. N. S. 122, 47 Week. Rep. 193, 79 L. T.

N. S. 654, 15 Times L. R. 124, was distin

guished on the ground that the act there which was done outside the scope of the servant's employment was not done in any emergency.

Where a workman employed by a lion tamer was left in charge of the cages of lions, and was injured while attempting to get a lion back into the cage, recovery was allowed upon the theory that, as he had been left in charge, he might properly attempt to drive the lion back. Hapelman v. Poole (1908) 25 Times L. R. (Eng.) 155, 2 B. W. C. C. 48.

21 Fatal injuries to a workman while attempting to rescue a fellow workman who had fallen down a shaft which they were engaged in cleaning out arose out of and in the course of employment. Matthews v. Bedworth Brick, Tile & Timber Co. (1899;