and in reference to a matter over which his authority extends. 4 Fletcher's Cyc. Corp. 2214. The information imparted by Taylor to Franks did not bind the plaintiffs in error. [4-7] The Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) should receive a liberal construction, so that its beneficent intent and purpose may be reasonably accomplished. Its provisions however, cannot be extended to cover injuries which do not occur in the course of and arise out of the employment. It is not sufficient that the injury occurs in the course of the employment; it must also arise out of the employment. The words “arising out of" have reference to the cause or origin of the accident and seem to indicate that the accident must happen out of the transaction of the business in which the workman is engaged. Boyd on Workmen's Comp. 472; Harper on Workmen's Comp. 31. It must be an accident resulting from a risk reasonably incidental to the employment. An accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. Dietzen Co. v. Industrial Board, 279 II 11, 116 N. E. 684, Ann. Cas. 1918B, 764; International Harvester Co. v. Industrial Board, 282 Ill. 489, 118 N. E. 711. Where an employe engaged in a voluntary act not accepted by or known to his employer and outside the duties for which he is employed is injured, it cannot be said that his injury arose out of his employment. Central Garage v. Industrial Com., 286 Ill. 291, 121 N. E. 587. Where an employe chooses to go to a dangerous place where his employment does not necessarily carry him, and where he incurs a danger of his own choosing and one altogether outside any reasonably exercise of his employment, it cannot be said that his act was an incident to his employment Nelson Construction Co. v. Industrial Com, 286 Ill. 632, 122 N. E. 113. Taylor was instructed to keep the truck in Rockford and had no authority to keep it in Cherry Valley. When he disobeyed instructions and chose to select a route that better suited his convenience he was acting outside his employment, and the injury which he received and which resulted in his death did not arise out of his employment. cock and Cramer were not killed in the course of their employment, nor did their death arise out of their employment. There was no agreement by either of plaintiffs in error to furnish them transportation from Cherry Valley to the farm. Without the knowledge of plaintiffs in error they arranged with Taylor to haul them over the Perryville route, and they must be held to have assumed the consequences of their own act. While arrangements had been made for them to ride on the trucks from Rockford to the farm, it was no part of the contract of hire that they would be furnished transportation from their homes to the place of their employment. Pea The judgment of the circuit court of Winnebago county in each of these causes of action is reversed, and the decision of the Industrial Commission in each case is set aside. Judgments reversed. WEST SIDE COAL & MINING CO. v. INDUSTRIAL COM- (Supreme Court of Illinois. Feb. 18. 1920.) 126 Northeasthern Reporter, 218. MASTER AND SERVANT-SLATE PICKER MOVING COAL CAR CONTRARY TO ORDERS, NOT INJURED BY ACCIDENT ARISING OUT OF HIS EMPLOYMENT WITHIN WORKMEN'S COMPENSATION ACT. Where one employed to pick rock and slate from a coal chute at a mine, in violation of orders moved a spragged coal car so as to permit the car to be filled and trimmed, and was crushed between the car and the chute, his death was not the result of an accident “arising out of and in the course af the employment within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) Error to Circuit Court, Randolph County; Louis Bernreuter, Judge. Proceeding under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) by Isaac C. Beare, administrator, to recover for the death of his intestate, Russel Schooler, opposed by West Side Coal & Mining Company, employer. An award by the Industrial Commission was vacated by the circuit court on certiorari, and the administrator brings error. Affirmed. James McKeag. of Chicago, for plaintiff in error. R. W. Ropiequet, of St. Louis, Mo. for defendant in error. DUNCAN, J. The Industrial Commission reversed the finding of the arbitrator in this case that the accident to the deceased, Russell Schooler, did not arise out of and in the course of his employment and awarded the petitioner the minimum amount allowed under the statute. Defendant in error sued out a writ of certiorari from the circuit court of Randolph county, and upon a hearing that court found that the accident did not arise out of and in the course of the employment of the deceased, and vacated the award of the Industrial Commission. Application for a writ of error to review the judgment of the circuit court was made to this court at its last term, and the same was granted. The only error relied upon by plaintiff in error for a reversal of the judgment of the circuit court is that that court erroneously found that the injury and death of the deceased were not the result of an accident arising out of and in the course of his employment. The deceased was employed by plaintiff in error at its mine as a rock and slate picker. His principal duties were to pick out the rock and slate from the coal as it passed through a chute leading from the coal mine to the railroad cars upon which it was being loaded. His location while performing that duty was on a seat at the top of the coal chute. The slack as it passed him dropped into the nearest car below, the egg coal into the second car, and the lump coal was carried by the chute into a car on the track farthest from him. The cars were standing upon an incline, and were held in place by sprags or blocks, and when the sprags or blocks were removed the cars would move down the incline by their own weight. When one end of a coal car was filled the coal would pile up and fall off upon the ground if the car was not promptly moved so that the other end of the car could be filled. Other men were employed in the yards for the purpose of removing the sprags or blocks so as to permit the cars to make the proper movement to be filled and properly trimmed. They were known as car trimmers, and were paid for their work the union scale, and by defendant in error's agreement with the union no one was to do that work who did not receive that scale. In addition to his work as a slate and rock picker the deceased drove the general manager back and forth from his home to the mine in his wagon, and did the hitching and unhitching, and was occasionally sent on errands to the town. He was not paid the union scale for his work. The secretary-treasurer and general manager of the plaintiff in error employed the deceased, and according to his testimony he was employed as a slate and rock picker and for no other purpose except the odd errands as aforesaid. He told the deceased what his duties were when he was employed, and told the top foreman to warn him not to engage in the work of moving the cars. The evidence is positive and undisputed that the top foreman did warn him a number of times before his death not to leave his seat at the coal chute or engage in the work of moving the cars at all. It was testified to by the top foreman and also by W. J. Smyth, and their testimony was corroborated by one of the car trimmers, who testified that he heard the top foreman tell the deceased not to move or assist in moving the cars. On the day the deceased was killed it appears from the record that the car trimmers got behind with their work, or were not looking after their work of trimming and moving cars, and that one of the cars was being overfilled at one end by the coal from the coal chute. The deceased left his seat, and went down and removed some of the blocks or sprags under the car, so that the car might move further down the incline and fill with coal at its other end. This car was an extra wide car, and by reason thereof, while the car was moving down the incline, the deceased's head was caught between an upright or post of the coal chute and a standard of the coal car. His head was thus crushed, and he died a short time thereafter. There is no dispute about the facts. The deceased was not engaged in any part of his duty under the evidence, at the time of the accident, but was engaged in an act that he had been told not to do. It cannot be said, therefore, that his death arose out of and in the course of his employment. Dietzen Co. v. Industrial Board, 279, Ill. 11, 116 N. E. 684, Ann. Cas. 1918B, 764; Central Garage v. Industrial Co., 286 Ill. 291, 121 N. E. 587; Rainford v. Chicago City Railway Co, 289 111. 427, 124 N. E. 643. It is contended by plaintiff in error that the top foreman saw the deceased on the ground just after he had taken the blocks or sprags from under the car, and that he did not then warn or tell him not to engage in that work. The car was already then moving, and while the foreman perhaps knew that deceased had removed the sprags, he was several feet away from him, and it does not appear that a warning at that time would have saved the deceased. As the deceased was not within the scope of his employment at the time of his injury the Industrial Commission had no jurisdiction to make an award for compensation. It is our duty to consider the evidence in the record which determines the question of jurisdiction. That evidence clearly shows that the deceased was outside of the scope of his employment, and was not engaged in any duty for which he was employed or in any work incident thereto. The judgment of the circuit court is affirmed. GRANT et ux. v. FLEMING BROS. CO. et al. (No. 33142.) 176 Northwestern Reporter, 640. MASTER AND SERVANT-JANITOR'S INJURY SHOWN TO death In proceedings under the Workmen's Compensation Act for of a janitor from the starting of a passenger elevator while he was not safely within. there being no eye witnesses and the injury occurring on Sunday, evidence held not sufficient to show that the injury arose out of and in the course of his employment. (For other cases, see Master and Servant, Dec. Dig. § 405[4]-> Appeal from District Court, Polk County; Lawrence De Judge. Graff, Proceeding to recover_compensation under the Iowa Workmen's Compensation Act. The Committee of Arbtration made an award. Upon review, this award was confirmed by the Industrial Commissioner. Upon appeal to the Polk County district court, the order of the Industrial Commissioner was affirmed and judgment was entered for the claimants. From such order and judgment of the district court, the defendants have appealed. Affirmed. Brockett, Strauss & Shaw, of Des Moines, for appellant. S. Joe Brown, of Des Moines, for appellees. the de EVANS, J. On May 26, 1918, Oscar Grant, an employe of fendants, sustained fatal injuries from which he died within a few min utes. The one question of controversy in the case is whether the injury to Grant arose out of and in the course of his employment. If the affirmative is found upon this question, the amount of the award has been stipulated by the parties. There was no witness to the circumstances which were the immediate Icause of the injury. In order to prove, therefore, that the injury of decedent arose out of and in the course of his employment, reliance must be had upon circumstantial evidence. The injury resulted from an elevator accident. Grant was a janitor and man of all work about the Fleming Building, a large office building in the city of Des Moines. The accident happened on Sunday. Only one of the three passenger elevators operation for passengers on that day. The south elevator, not in that day to inspect and oil the same. was in use for passengers, was under inspection by its engineers. It was their duty on This duty had been completed only a few seconds before the accident in question. The last conversation with Grant was had with these engineers, Harris and Allen. Grant had been at work putting in some partitions on the sixth floor. He had some mate basement by means of an elevator. His purpose was to bring the these engineers and consented to by them. The construction same of this to the down in the south elevator, and this purpose had been communicated to elevator is such that a release of the "up-lever" will send it from the basement to the top floor. Likewise a release of the "down-lever" will send it from the top floor to the basement. The circumstances clearly indiIcate that, while the elevator was in the basement, Grant had undertaken to enter it pursuant to his purpose to go after his material on the sixth floor, and that, while he was entering it, the up-lever became in some manner released. The upward thrust of the elevator crushed Grant against the floor above before he had got to a point of safety within. Whether the release of the up-lever was accidental or unintentional, or whether it was done by Grant in an attempt to operate the elevator, is involved in uncertainty. The contention of appellant is that he was operating the elevator, and that such operation was beyond the scope of his employment, and that therefore his resulting injury was outside of the contemplation of the Compensation Act (Laws 1913, c. 147). The scope of Grant's employment was testified to by one of his employers as follows: "Q. Mr. Fleming, did yo personally attend to the employment of the deceased? A. Yes, sir. "Q. When had he entered the employ of Fleming Bros., Incorporated? A. On about the 10 or 12th of January. "Q. And he continued with you until the time of his death? A. Yes, sir. "Q. What was his work, and what did he do around there? A. He did janitor work and helped put in partitions, in making changes up through the building, and helping take up mortar and mix mortar, and was janitor and handy man to do any work that was to be done. "Q. This matter of getting material from the sixth floor, that was part of his work? A. Yes. "Q. Did he have to do anything with this hoist in the rear of the building? A. Yes, almost daily for some time he got out ashes and helped get out freight and get in plaster or mortar and tiles, and everything in connection with building and putting in new partitions, etc., and helping take out furniture. "Q. Do you think, Mr. Fleming, he was familiar with the working of the passenger cages? A. I think he was. He did not handle passengers at all. "Q. You think a man that could run the freight elevator hoist outside could manage an elevator? A. I think he could from the time he had been running it." Engineer Harris testified to the last conversation of Grant as follows: "A. Well, we were inspecting the elevators. We make a system every Sunday of going over all of them. Of course, we go over them during the week, but do the oiling and other things on Sunday. We were just finishing on the south car, and this boy said he wanted to use the carthat is, Grant-to get some stuff on the sixth floor, and we told him we would be ready in about ten minutes and we finished the car. I was the last man out and left the door shut and the lever in a down position, and Grant was not there at the time. We were in the shop and were wiping grease off of our hands, and just then he appeared at the shop door, and he says to the assistant engineer, I am ready now, Mr. Allen, to get that stuff from the sixth floor,' and Allen answered, 'All right, Kiddo, as soon as I get a drink will bring it down for you." 999 Assistant Engineer Allen testified to the same conversation as follows: "Q. Where was the deceased when you saw him at that time; that is, after the doors in the basement had been closed? A. He came down the stairway and said he was ready to go up. "Q. Clear down? A. Yes. "Q. He was in the basement? A. Yes. "Q. You left and went somewhere? A. I went to the sub-basement after a drink. "Q. That is the last you saw of the deceased before the accident? A. Yes, sir. "Q. What was it he wanted to do with the elevator according to what he told you? A. He wanted me to take the elevator up to the sixth floor after lumber. "Q. You indicated that as soon as you got a drink you would go with him? A. Yes, sir." |