Donahue v. Maryland Cas. Co.

• Decision Date: 25 May 1917
• Parties: DONAHUE v. MARYLAND CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 595

116 N.E. 226

DONAHUE

v.MARYLAND CASUALTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

Appeal from Superior Court, Suffolk County.

Application by Patrick M. Donahue for compensation for injuries under the Workmen's Compensation Act, resisted by Thomas J. Flynn & Co., employer, and the Maryland Casualty Company, insurer. From the judgment on the decision of the Industrial Accident Board awarding compensation, the insurer appeals. Reversed, and decree entered for insurer.

E. I. Taylor, of Boston, for appellant.

CROSBY, J.

The evidence presented to the committee of arbitration was in substance as follows: The claimant, who was employed by the insured in the sale of church goods, on February 21, 1916, left his employer's place of business in Boston, and proceeded by train to Lowell and thence by electric cars to the village of Collinsville in Lowell. Upon leaving the electric cars, he went to the house of a clergyman, which was distant about ten minutes' walk from the car line, and after completing his business there left and started to walk back. He had proceeded about thirty-five or forth feet when he slipped on the ice and fell, sustaining a broken ankle. When injured he was walking in the middle of the street, the sidewalk being impassable on account of ice. He was employed principally as a traveling salesman, but worked in the store during the Christmas and Easter seasons. More than half of the time he was outside his employer's store visiting different places throughout New England for the purpose of selling church goods. He traveled by steam railroads, electric cars, and on foot,-using cars when available. When he left the house of the clergyman he intended to take a car to Lexington to sell some goods there. The committee found that the employee received an injury in the course of and arising out of his employment.

At the hearing before the Industrial Accident Board in addition to the evidence before the committee above recited, the employee testified:

‘I was going to get a car to Lexington when I fell. The street was a mass of ice. I never saw anything like it before or since.’

The finding that the injury was received in the course of the employment was warranted. The question remains whether there was any evidence that the injury arose out of the employment. An injury arises out of the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury. An injury cannot be found to have arisen out of the employment unless the employment was a contributing, proximate cause. If the risk of injury to the employee was one to which he would have been equally exposed apart from his employment, then the injury does not arise out of it. As was said by this court in McNicols' Case, 215 Mass. 497, at page 499, 102 N. E. 697, L. R. A. 1916A, 306:

‘The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not...