In Widman v. Murray Corporation of America, 245 Mich. 332, an employee was required to travel by train in the course of his employment, and while so traveling was struck in the eye by a cinder. In affirming an award of compensation we quoted with approval from Harry Cook's Case, 243 Mass. 572 ( 137 N.E. 733, 29 ALR 114), as follows: "When these hazards thus become connected with, and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment.
Prior to the amendment to the Massachusetts Act, St. 1927, Ch. 309, Sec. 3, injuries arising out of an ordinary risk of the street were not ordinarily compensable. Bell's Case, 238 Mass. 46, 130 N.E. 67. Yet, in Cook's Case, 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114, it was stated that no formula or general statement can afford a solution without reference to the circumstances of each case. Conditions existing at the time are to be examined.
Where an employee works in the street, as a teamster does, a causal connection between his employment and a risk of the street is not hard to find. Keaney's Case, 232 Mass. 532. Moran's Case, 234 Mass. 566, explained in the dissenting opinion in Cook's Case, 243 Mass. 572, 578, which became substantially the prevailing opinion in Colarullo's Case, 258 Mass. 521. Gardner's Case, 247 Mass. 308, 310. See also Mannix's Case, 264 Mass. 584. If an employer, in performance of one of the express or implied terms of the employment, furnishes vehicular transportation to an employee, an injury during that transportation has been held to arise "out of and in the course of his employment."
And the fact that others, engaged in their own affairs, are more or less exposed to the same street risks, does not preclude recovery by an employee who is necessarily exposed to them in performing the duties of his employment contract." Cook's Case, 243 Mass. 572 ( 137 N.E. 733, 29 A.L.R. 114). I am unable to distinguish the present case from Kunze v. Detroit Shade Tree Co., 192 Mich. 435, and Widman v. Murray Corporation, 245 Mich. 332.
This condition of the employment was the proximate cause of his injury. These undisputed facts fix the responsibility of the defendant regardless of the fact that others riding on the train were exposed to the same risks. In Cook v. Assurance Corp., 243 Mass. 572 ( 137 N.E. 733, 29 A.L.R. 114), in speaking of street hazards assumed by a servant in his employment, the court said: "When these hazards thus become connected with, and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment.
Particularly is this true where the employment is one which requires the employee to subject himself to unusual exposure to street risks such as does that of a messenger or truck driver. ( Fogg's Case, 125 Me. 168, 132 Atl. 129; Chandler v. Industrial Com., 55 Utah 213, 8. A.L.R. 930, 184 P. 1020; Cook's Case, 243 Mass. 572, 29 A.L.R. 114, 137 N.E. 733, and cases cited; Globe Indemnity Co. v. Industrial Acc. Com., 36 Cal.App. 280, 171 P. 1088; Keaney's Case, 232 Mass. 532, 122 N.E. 739; Hansen v. Northwestern Fuel Co., 144 Minn. 105, 174 N.W. 726; Miller v. Taylor, 173 App. Div. 865, 159 N.Y. Supp. 999; Employers' Indemnity Corp. v. Kirkpatrick (Tex.Civ.App.), 214 S.W. 956; Beaudry v. Watkins, 161 Mich. 445, 158 N.W. 16, L.R.A. 1916F, 576; Burton Auto Transfer Co. v. Industrial Com., 37 Cal.App. 657, 174 P. 72; Siglin v. Armour Co., 261 Pa. 30, 103 Atl. 991; City of Milwaukee v. Althoff, 156 Wis. 68, 145 N.W. 238, L.R.A. 1916A, 327; Newark Paving Co. v. Klotz, 85 N.J.L. 432, 91 Atl. 91; Zabriskie v. Erie R. Co., 86 N.J.L. 266, 92 Atl. 385; Porter Co. v. Industrial Com., 301 Ill. 76, 133 N.E. 652; M'Neice v. Singer Sewing Mach. Co., Ltd., 4 B. W. C. C. 351; Bett v. Hughes, 8 B. W. C. C. 362; Reugg's Workmen's Compensation, 9th ed., pp. 91-93.)
It is well settled that where a salesman suffers a highway accident while traveling by automobile to or from a place where his duties require him to go, the accident arises out of and in the course of his employment. Ætna Life Insurance Company v. Schmiedeke, 192 Wis. 574, 213 N.W. 292, 293; New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786, 789, 790; Cook's Case, 243 Mass. 572, 137 N.E. 733, 735, 29 A.L.R. 114; Empire Health Accident Ins. Co. v. Purcell, 76 Ind. App. 551, 132 N.E. 664, 666; United States Casualty Co. v. Superior Hardware Company, 175 Wis. 162, 184 N.W. 694, 695; Schroeder Daly Co. v. Industrial Commission, 169 Wis. 567, 173 N.W. 328, 329; Capital Paper Co. v. Conner, 81 Ind. App. 545, 547, 144 N.E. 474, 475; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 131. The burden was upon the claimant to establish by evidence that Simpson's death was proximately caused by an accident arising out of and in the course of his employment and that the accident occurred while performing services arising out of and in the course of his employment.
In Inglish v. Industrial Commission, 125 Ohio St. 494, 182 N.E. 31, 83 A.L.R. 210, it appeared that where a school teacher, after school hours, while traveling by the usual direct, and necessary route from his school to his home, carrying examination papers, which he was expected by his county superintendent to grade at his home, such being the general practice, there being no opportunity nor facilities to perform such work at the schoolhouse, was struck and killed by an automobile, it was held by the court that the accident arose out of and in the course of the teacher's employment. See, also, Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71; Ryan v. Industrial Commission, 89 Colo. 393, 3 P.2d 300; Scrivner v. Franklin School District, 50 Idaho 77, 293 P. 666; Stockley v. School District, 231 Mich. 523, 204 N.W. 715; Industrial Commission v. Davison, 118 Ohio St. 180, 160 N.E. 693; Bisdom v. Kerbrat, 251 Mich. 316, 232 N.W. 408; Case of Cook, 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114; Bachman v. Waterman, 68 Ind. App. 580, 121 N.E. 8; State Compensation Ins. Fund v. Industrial Accident Commission, 89 Cal.App. 197, 264 P. 514. Accordingly, we reverse the decision of the lower court and remand the case, with instructions to sustain the bill of complaint filed by claimant in the case.
The street accident doctrine was properly applied. In re Harraden, 66 Ind. App. 298, 118 N.E. 142; Roe v. Boise Gro. Co., 53 Idaho 82, 21 P.2d 910; 71 C.J. 751; Standard Acc. Ins. Co. v. Hooge, 62 App.D.C. 245, 66 F.2d 275; Standard Acc. Ins. Co. v. Pardue, 39 Ga. App. 87, 146 S.E. 638; Cook's Case, 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114; Moran's Case, 234 Mass. 566, 125 N.E. 591; Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N.W. 851; Walhig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 128; New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786; Id., 33 Ga. App. 299, 126 S.E. 271; Hilding v. Dept. of Labor Ind., 162 Wn. 168, 298 P. 321. Kennedy v. Hull Dillon Pkg. Co., 130 Kan. 191, 285 P. 536, 100 A.L.R. 1057; Smith v. Hamilton, 231 Ill. App. 482; 58 Am.Jur. 735; Beem v. Lee, Mer. Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044; Maryland Casualty Co. v. Seay, 5 Cir., 67 F.2d 819; White v. Mercer County Poor Dir., 114 Pa. Super. 348, 174 A. 834. LIVINGSTON, Justice.
This is not a case where the duties of the employee in travelling or in making various calls in different places require him to be on and about the streets during working hours. See Keaney's Case, 232 Mass. 532; Cook's Case, 243 Mass. 572; Higgins's Case, 284 Mass. 345; Harvey's Case, 295 Mass. 300. Compensation was properly denied. Decree affirmed.