This court has noted that this "so-called rule has proved to be of doubtful utility and is riddled with various exceptions." Brousseau v. Blackstone Mills, 100 N.H. 493, 494, 130 A.2d 543, 545 (1957); see Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964); United States Fidelity Guar. Co. v. Gagne, 103 N.H. 420, 174 A.2d 406 (1961). In this jurisdiction the question is simply whether the cause of the injury can properly be considered a hazard of the employment.
Not only have we reached the point, they argue, where the exceptions have obliterated the rule, but continuing to focus on the artificially perpetuated "rule" and its categories of exceptions causes the board and the courts to lose sight of the primary statutory test of "in the course of employment." The New Hampshire Supreme Court, noting that, "the so-called `rule' has proved to be of doubtful utility and is riddled with various exceptions," repudiated it in Brousseau v. BlackstoneMills (1957) 100 N.H. 493, 494-495 [ 130 A.2d 543, 545]: ". . . [W]e do not regard the going-and-coming rule as either necessary or particularly useful in deciding coverage under the Workmen's Compensation Law." The tortuous history of the "rule," indeed, writes more than an essay in abstraction; it is rather the record of a raw issue.
Horovitz, in his above-mentioned article, refers to seven types of exceptions, with the added remark that at least a dozen more have received judicial recognition. The author then comments, "Modern courts are ignoring this court-made rule and properly judging each case on its own facts and merits" (Horovitz, op. cit., p. 51), and cites in his extensive footnotes Brousseau v. Blackstone Mills, 100 N.H. 493, 130 A.2d 543 (1957), wherein the Supreme Court of New Hampshire declared, "we do not regard the going-and-coming rule as either necessary or particularly useful * * *." (100 N.H., at p. 495, 130 A.2 d, at p. 545.) See also 25 NACCA L.J. 211 (1960), for the statement:
We have noted that the going and coming rule is of "doubtful utility" because it "is riddled with various exceptions." Brousseau v. Blackstone Mills, Inc., 100 N.H. 493, 494, 130 A.2d 543 (1957). Nonetheless, we have declined to overrule it because of our concern that doing so would lead to portal-to-portal compensation, which is "a journey upon which we [have not been] prepared to embark."
The plaintiff argues that merely because the accident occurred after work hours does not mean that his activity was personal and not related to his employment. While this court has questioned the utility of the strict "coming and going" rule, under which an employee having fixed hours and a fixed place of work is compensated only for injuries which occur on the employer's premises, see Brousseau v. Blackstone Mills, 100 N.H. 493, 495, 130 A.2d 543, 545 (1957), we have repeatedly recognized that the ordinary perils of travel between home and work are not considered hazards of employment and, therefore, that injuries arising from such travel are noncompensable. See Donnelly v. Kearsarge Tel. Co., 121 N.H. 237, 240, 428 A.2d 888, 890 (1981); Heinz, supra at 218, 371 A.2d at 1164.
Noting, however, the "doubtful utility" and the "various exceptions" to the "going and coming rule," we have held that an employee's injury is compensable if "the cause of the injury can properly be considered a hazard of the employment." Heinz v. Concord Union School Dist., supra at 217-18, 371 A.2d at 1163-64; Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964); Brousseau v. Blackstone Mills, 100 N.H. 493, 494-95, 130 A.2d 543, 545-46 (1957). In Heinz the employee was killed when his motorcycle went off the road while he was on his way home from a private party.
Other jurisdictions have had similar misgivings and have either rejected or severely restricted the application of the rule. Brousseau v. Blackstone Mills, 100 N.H. 493, 130 A.2d 543, 545 (1957); Hornyak v. Great Atlantic Pacific Tea Co., 63 N.J. 99, 305 A.2d 65 (1973). Finally, if one must accept the format of a going-and-coming rule plus its exceptions, I would point to other well-reasoned exceptions which have been created when, as here, the facts bear no resemblance to the normal commuter accidents which the general rule was intended to exclude.
That railroad crossings have been viewed as presenting a somewhat unique form of "special hazard" is evidenced by the fact that a majority of courts have declined to make compensable a fall on ice on a public sidewalk even in close proximity to the plant entrance. In Brousseau v. Blackstone Mills (1957) 100 N.H. 493, 130 A.2d 543 the employee on her way to work slipped on an icy public sidewalk about 200 feet from the place of employment. Noting that "in a greater number of cases recovery has been denied," the Court was unable to find any causal relationship between the injury and the risks of employment and denied recovery, "not because the injury occurred off the employer premises and on a public sidewalk but because it did not arise out of and in the course of the employment."
56 N.J. at 11-12. See Bergman v. Parnes Brothers, Inc., 58 N.J. 559 (1971); Williams v. Remco Industries, 118 N.J. Super. 481 ( App. Div.), certif. denied, 61 N.J. 163 (1972); DiNardo v. Newark Bd. of Ed., 118 N.J. Super. 536 ( App. Div. 1972); Pearce v. N.J. Highway Authority, 122 N.J. Super. 342 ( App. Div. 1973); cf. Brousseau v. BlackstoneMills, 100 N.H. 493, 130 A.2d 543 (1957); Schreifer v.Industrial Accident Commission, 61 Cal.2d 289, 38 Cal. Rptr. 352, 391 P.2d 832 (1964); Guest v. Workmen'sCompensation Appeals Board, 2 Cal.3d 670, 87 Cal.Rptr. 193, 470 P.2d 1 (1970). See also Horovitz, "Worldwide Workmen's Compensation Trends," 59 Ky. L.J. 37 (1970), where the author suggests that the time has perhaps come to wipe out the rule rather than to keep increasing the exceptions; he noted that "portal to portal protection is now becoming the statutory or decisional rule in many countries" and that the trip to and from work is often "the most dangerous part of the employee's job" and should justly be covered by the compensation statute.
The question of whether it arose "in the course of the employment" is more difficult of determination. Lybolt v. Company, 85 N.H. 262; Brousseau v. Blackstone Mills, 100 N.H. 493; Cf. United States F. G. Co. v. Gagne, 103 N.H. 420. "In this jurisdiction we do not regard the going-and-coming rule as either necessary or particularly useful in deciding coverage under the Workmen's Compensation Law."