Messrs. Osborne, Butler Moore, of Spartanburg, forAppellants, cite: As to claimant's injury not being caused"by accident arising out of and in the course of his employment": 205 S.C. 423, 32 S.E.2d 240; 197 S.C. 21, 14 S.E.2d 367; 201 S.C. 257, 22 S.E.2d 715; 211 S.C. 370, 45 S.E.2d 591; 204 S.C. 481, 30 S.E.2d 73; 208 S.C. 545, 38 S.E.2d 761; 208 S.C. 139, 37 S.E.2d 286; 208 S.C. 86, 37 S.E.2d 291; 207 S.C. 258, 37 S.E.2d 838; 205 S.C. 353, 32 S.E.2d 1; 214 S.C. 162, 51 S.E.2d 510; 202 S.C. 88, 24 S.E.2d 109; 59 F.2d 595; 195 S.C. 346, 11 S.E.2d 376; 209 S.C. 411, 40 S.E.2d 626; 212 S.C. 514, 48 S.E.2d 497; 71 C.J. 760, Sec. 476; 202 S.C. 189, 24 S.E.2d 272; 199 Cal. 596, 250 P. 864, 49 A.L.R. 446; 21 Pa.2d 911; 6 Pa.2d 860; 138 Pa.2d 263; 213 N.C. 148, 195 S.E. 371. As to whenonly one reasonable inference can be deduced from the evidence,it becomes a question of law for the court, and nota question of fact for the jury: 205 S.C. 72, 30 S.E.2d 841.
In Berry v. J. C. Penney Co., 74 N.M. 484, 394 P.2d 996, we interpreted the language "arising out of employment" to require proof that the injury was caused by "a peculiar or increased risk to which claimant, as distinguished from the general public, was subjected by his employment." See also Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885; Martinez v. Fidel, 61 N.M. 6, 293 P.2d 654; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72, 74. It is quite clear that under the facts of this case the claimant's injury, just as in Berry, arose out of risks or a condition personal to the claimant and not out of a risk peculiar to the employment.
It must `arise out of' as well as `in the course of' the employment. Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72, 74; Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885. There must not only have been a causal connection between the employment and the accident, but the accident must result from a risk incident to the work itself.
But it must "arise out of" as well as "in the course of" the employment. Berry v. J.C. Penney Co., 74 N.M. 484, 394 P.2d 996; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Luvaul v. A. Ray Barker Motor Company, 72 N.M. 447, 384 P.2d 885. We think that the ultimate facts to be determined by the trial court as a basis for the conclusion as to whether the claim is a compensable one are whether an injury sustained by a workman arose out of and in the course of his employment.
It must "arise out of" as well as "in the course of" the employment. Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72, 74; Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885. There must not only have been a causal connection between the employment and the accident, but the accident must result from a risk incident to the work itself. When the employee, as in this case, solely because of a non-occupational, pre-existing physical condition, suffered a muscle spasm of the lower back, the question arises whether the muscle injury is one arising out of the employment.
In Gilbert v. E.B. Law Son, Inc., 60 N.M. 101, 287 P.2d 992, we held that before an injury may be said to be compensable as "arising out of employment," the accident causing the injury must result from a risk reasonably incident to the employment; a risk common to the public generally and not increased in any way by the circumstances of the employment is not covered by our Act. In Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263, it is said: "`* * * the employment must have had some causal connection with the accident; the accident must result from a risk reasonably incident to the employment, or the injury cannot be said to arise out of it.
This evidence is sufficient to sustain a finding of accidental injury in the course of employment within many decisions of this court. Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Clower v. Grossman, 55 N.M. 546, 237 P.2d 353; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Henderson v. Texas-New Mexico Pipe Line Co., 46 N.M. 458, 131 P.2d 269; Gilbert v. E.B. Law Son, Inc., 60 N.M. 101, 287 P.2d 992. The undisputed evidence in the case shows that the claimant in his early life suffered from tuberculosis resulting in a Ghon tubercle, which is defined as "primary lesion in juvenile pulmonary tuberculosis."
"* * * It is not necessary that a workman be subjected to an unusual or extraordinary condition, not usual to his employment, for an injury sustained to be termed an accidental one under our law. Webb v. N.M. Pub. Co. and Barton v. Skelly Oil Co. [ 47 N.M. 127, 138 P.2d 263], both supra."
The risk of slipping upon the icy pavement was common to the public generally who had occasion to pass over it on foot. Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263. It was a danger due to climatic conditions to which persons in the vicinity, however employed, or if not employed at all, were equally exposed.
As noted heretofore, counsel for both sides in this case have re-argued the question considered at length in the case of Stevenson v. Lee Moor Contracting Co., 1941, 45 N.M. 354, 115 P.2d 342, whether recovery under our Workmen's Compensation Law may be predicated upon injury without antecedent or distinguishable accident to the workman. While many cases in this jurisdiction have raised facts almost necessitating the resolution of this question, in each of them, as in this case, there was some unlooked for or untoward event distinguishable from the injury. These cases are: Hathaway v. New Mexico State Police, 1953, 57 N.M. 747, 263 P.2d 690; Aranbula v. Banner Min. Co., 1945, 49 N.M. 253, 161 P.2d 867; Webb v. New Mexico Pub. Co., 1943, 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Barton v. Skelly Oil Co., 1943, 47 N.M. 127, 138 P.2d 263; Henderson v. Texas-New Mexico Pipe Line Co., 1942, 46 N.M. 458, 131 P.2d 269; Stevenson v. Lee Moor Contracting Co., supra; Christensen v. Dysart, 1938, 42 N.M. 107, 76 P.2d 1. We said in the Aranbula case [ 49 N.M. 253, 161 P.2d 869]: