Ella M. Brown v. Bristol Last Block Co.

• Decision Date: 20 January 1920
• Parties: ELLA M. BROWN ET AL. v. BRISTOL LAST BLOCK COMPANY ET AL
• Court: Vermont Supreme Court

108 A. 922

94 Vt. 123

ELLA M. BROWN ET AL. v. BRISTOL LAST BLOCK COMPANY ET AL

Supreme Court of Vermont

January 20, 1920

October Term, 1919.

APPEAL by the defendants from the findings of fact and award of the Commissioner of Industries. The opinion states the case.

The award is affirmed, with costs. Let the result be certified to the Commissioner of Industries.

Ainsworth Carlisle, Sullivan & Archibald and Lawrence Lawrence & Stafford for the defendants.

J G. Page and Allen R. Sturtevant for the plaintiffs.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

MILES

This case comes here on appeal from the finding of facts and award of the Commissioner of Industries. No question is made in the brief of the defendants but that Joseph Brown, the husband of Ella M. Brown, the plaintiff, was employed by the defendant Bristol Last Block Company at the time of his injury which resulted in his death, and that his employment included his team of two horses, and that the injury was the result of an accident.

The statute under which this action is brought is as follows: "If a workman receives personal injury by accident arising out of and in the course of such employment, his employer or insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified." G. L. 5768. To recover under this statute it was necessary for the plaintiff to show, not only that the injury was the result of an accident, but that the accident arose out of and in the course of Brown's employment. Robinson v. State, 93 Conn. 49, 104 A. 491. The burden is upon the plaintiff to make out all these conditions. It is not enough that the injury arose in the course of the employment. It must also have arisen out of the employment.

It is not easy to give a definition of the phrase, "accident arising out of and in the course of such employment," that will apply to every case arising under the Workmen's Compensation Act. In re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916 A, 306. It is enough now to say that an injury arises in the course of the employment when it arises within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment; and an injury arises out of the employment when it occurs in the course of it and as a proximate result of it. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, L. R. A. 1916 E, 584; In re McNichol, supra; Jacquemin v. Turner et al., (Conn.) 92 Conn. 382, 103 A. 115; Rees v. Thomas, 1 Q. B. 1015; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L. R. A. 1916 F, 1164; State v. District Court, 129 Minn. 176, 151 N.W. 912. When an injury is a natural and necessary incident or consequence of the employment, though not foreseen or expected, it arises out of it. Larke v. Hancock Mutual Life Ins. Co., supra. 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. Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458.

No question is raised in the case at bar that Brown was in the employ of the Bristol Last Block Company on the day of the accident, and that the accident happened about the noon hour; that Brown had eaten his dinner; that for some unknown cause the horses ran away; that Brown tried to stop them; and that in trying to do so he was run over by them and killed. These principles we think bring this case within the doctrine stated in the cases cited above. The accident happened while Brown was doing the duty which he was employed to perform, and at a place where he had a right to be in the performance of that duty. The accident, we think, was received in the course of his employment.

It is apparent to the rational mind, upon consideration of all the circumstances, that there was a causal connection between the conditions under which the work was required to be performed and the resulting injury. The agency which produced the injury was the instrumentality with which the workman's labors were performed and without which he would not have been injured. He may have been negligent in the use of that agency; but that does not defeat recovery. G. L. 5766. We think the facts, about which there is no dispute, clearly support the finding of the commissioner that the accident arose out of Brown's employment.

The defendant excepted to the findings of the commissioner that there were marks upon the body of Brown apparently made by the hoofs of the horses, and that he was preparing the...