be reversed, and a decree for the insurer entered. The deceased employee having left a minor daughter the claimant, his sister, is not the next of kin and can have no claim for compensation unless she was a member of his family partly dependent for support upon his earnings at the time of his death. Kelley's Case, 222 Mass. 538, 111 N. E. 395; St. 1911, c. 751, pt. 5, § 2. While the claimant, her minor son and the employee live together in the house formerly owned by the mother of the sister and brother and who died intestate, the claimant is shown to have had the exclusive management of the household affairs. And she and her son undoubtedly constituted a family. Murphy's. Case, 224 Mass. 592, 113 N. E. 283. It is uncontroverted that "nothing was ever said about board." But even so, it is plain on the record that the weekly payments of the employee contributed for the support of the household whenever he could obtain employment, and the purchase of some incidental household furnishings and supplies as well as his cultivation of the garden did not make him the head of the family of which his sister and his nephew could be deemed members. Cowden's Case, 225 Mass. 66,113 N. E. 1036. Ordered accordingly. SUPREME JUDICIAL COURT OF MASSACHUSETTS. IN RE WORCESTER. IN RE O'BRIEN. EMPLOYERS' LIABILITY ASSUR. CORP., LIMITED.* WORKMEN'S COMPENSATION ACT-"ARISING OUT OF HIS EMPLOYMENT." resulting from a misstep or the loss of his balance while reaching for the rail of an outside stairway he was descending while other employees An employee, leaving the employer's premises and injured by a fall were rushing down the stairway, received an injury "arising out of his employment." Such fall is a risk of hazard of the business. Appeal from Superior Court, Worcester County. Proceeding under the Workmen's Compensation Act (St. 1911, c. 751, as pensation amended St. 1914, c. 708), by John O'Brien to obtain comfor personal injury, opposed by the Standard Comb Com pany, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. Compensation was awarded by the Industrial Ac * Decision rendered, Nov. 2, 1917. 117 N. E. Rep. 619. 1 cident Board, on review and from a decree of the Superior Court affirming the award the insurer appeals. Decree affirmed. Chas. C. Milton and Frank L. Riley, both of Worcester, for Appellant. J. Ward Healey, of Leominster, for Appellee. PIERCE, J. It was agreed that the employee received an injury on September 12, 1916, in the course of his employment; that the claim for compensation was filed on January 5, 1917, and that the employer had knowledge of the injury when the accident occurred. On appeal to this court the only question presented is whether or not the injury which the employee received on September 12, 1916, arose out of his employment. The facts were these: The employee was sixty-four years of age and was practically blind as to his right eye. He had worked for the employer when there was work for him to do for five years, and was always faithful at his work. His vision was ample so far as his working needs were concerned and he could see with his left eye to go down the stairway upon which the injury occurred. The accident happened at about six o'clock in the evening after the whistle had blown and while the employee was going down stairs on his way home. The stairway from which the employee fell is on the outside of the building of the employer and goes up from the ground to the second story. It is covered by a roof which is held up by posts; one at the top of the stairway, one about five feet down, one some feet below that and still another farther down. There is a railing about three feet high on the right side of the stairs as one comes down. These stairs were used by some of the men in the employee's department. There are ways of going down to the street from the second floor and the men had the privilege of using any one of the stairways. There was evidence that the employee had his hand on the railing part way down the stairs; that momentarily he took his hand off the railing; that other employees were rushing down the stairs; that when he reached the third upright post and the ninth step from the bottom, he reached for the railing again, lost his balance and went right over the railing to the ground. Upon all the evidence the Industrial Accident Board found that the employee "received a personal injury which arose out of and in the course of his employment, on September 12, 1916, by reason of a fall while leaving the premises of his employer, which was occasioned either by a misstep, which caused him to slip, or the loss of his balance while reaching for the railing of the stairway down which he was proceeding." We are of opinion that there is a reasonable probability that some employee in the course of his employment will fall and receive an injury while descending a stairway of an employer, constructed and used as the stairway was in the case at bar. It follows that the likelihood of such a fall is a risk and hazard of that business. Sundine's Case, 218 Mass. 1, 105 N. E. 433; Von Ette's Case, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641; Cox's Case, 225 Mass. 220, 114 N. E. 281. Hewitt's Case, 225 Mass. 1, 113 N. E. 572, L. R. A. 1917B, 249, and Sanderson's Case, 224 Mass. 558, 113 N. E. 355, are distinguishable on their facts. Decree of superior court affirmed. So ordered. SUPREME COURT OF MINNESOTA. STATE EX REL. JEFFERSON et al. VS. DISTRICT COURT OF RAMSEY COUNTY ET AL. (No. 20714.)* WORKMEN'S COMPENSATION ACT-DEATH FROM INJURYEVIDENCE. Evidence held sufficient to sustain the finding of the trial court that the death of the deceased employee resulted from the injuries which he had sustained and not solely from disease. Certiorari from District Court, Ramsey County; J. C. Michael, Judge. Original writ of certiorari in Supreme Court on relation of A. C. Jefferson, and others, to review a judgment of the District Court of Ramsey County and others, awarding compensation under the Workmen's Compensation Act to Mary Ballauf for the death of her husband, Joseph Ballauf, an employee of relator Jefferson. Affirmed. Briggs, Thygeson & Everall, of St. Paul, for Relator. TAYLOR, C. This is a case under the workmen's compensation law (Gen. County awarded compensation to Mary Ballauf for the death of her husband, Joseph Ballauf. The question presented is whether the evidence is sufficient to sustain the finding of the court that sustained while in the employ of the relator Jefferson. That he was crushed under a load of lumber and suffered several broken ribs and other lesser injuries, and that he was confined to his bed from that time until his death six weeks later, is conceded; but the relators contend that his death was caused solely Decision rendered, Nov. 16, 1917. 164 N. W. Rep. 1012. Syllabus by the Court. by disease, and did not result in consequence of the injuries which he sustained. An autopsy disclosed that he had pulmonary tuberculosis in such an advanced stage that one lung had been entirely destroyed and the other to a considerable extent; also that he was suffering from other diseases. The relators called three physicians who testified that, in their opnion, his death was caused by pulmonary tuberculosis, and that the injuries which he had sustained were not sufficient either to cause or hasten his death. The claimant called no physicians, but other witnesses testified that the deceased had worked continuously at hard labor until the accident, had apparently been in good health at all times theretofore, and had never been able to leave his bed thereafter. In view of all the circumstances, we are unable to say that it conclusively appears that the injuries sustained had no part in causing his death, nor that the trial court was concluded by the testimony of the experts. The decision of the trial court is affirmed. SUPREME COURT OF MINNESOTA. STATE EX REL. MILLER VS. DISTRICT COURT, HENNEPIN COUNTY, ET AL. (No. 20593.)* WORKMEN'S COMPENSATION "ARISING OUT OF AND IN COURSE OF EMPLOYMENT.” Messenger boy, who in performing his duties traverses the streets of a city, when he departs from a scope of his employment, climbs upon a passing vehicle, not owned or controlled by his employer, for the purposes of expediting his work, so that an accident which befalls him when upon such vehicle cannot be said to arise out of and in the course of his employment under the Workmen's Compensation Act. Holt, J., dissenting. Original writ of certiorari in Supreme Court by the State, on the relation of Danie! B. Miller, against the Disrict Court, Hennepin County, and others, to review a judgment of that court dismissing a proceeding for compensation under the Workmen's Compensation Act. Affirmed. B. W. Wilder and W. H. McGrath, both of Minneapolis, for Relator. K. A. Campbell and B. Burness, both of Minneapolis, for Respondents. * Decision rendered. Nov. 16, 1917. 164 N. W. Rep. 1012. Syllabus by the Court. HOLT, J. Certiorari to review a judgment dismissing a proceeding under the Workmen's Compensation Act. The judgment recites that, when the cause came on for hearing, defendant's motion to dismiss was granted, on the ground that the matter alleged in plaintiff's complaint showed on its face that the accident, on account of which compensation was sought, did not arise out of or in the course of plaintiff's employment. The facts stated in the complaint are in substance these: Plaintiff, 17 years old, was in the employ of defendant as a messenger at $7 per week. In this work he was provided with car fare when the distance to carry the message was considerable, but not when the distance was as short as the one from defendant's place of business to the Shubert Theater, or five blocks. On November 20, 1916, at 3 o'clock in the afternoon, plaintiff, who had been sent by an employee of defendant, having authority so to do, to the Shubert Theater for tickets, was returning with them to the defendant's office. It is alleged that plaintiff was unusually busy that day and, in his haste to return to the office to continue his duties, he climbed upon an automobile truck which was proceeding in that direction, and, while so riding, he slipped on a roller upon the floor of the truck, became entangled in the gears thereof, and was severely injured. Upon the hearing of the motion, it was conceded that the truck was not the property of defendant or under its control. No doubt the facts alleged show that the accident happened while plaintiff was in the course of his employment. But it must also appear that it arose out of the same. It must grow out of it or be incidental thereto. State ex rel. Duluth Brewing & Malting Co. vs. District Court, 129 Minn. 176, 151 N. W. 912; Mahowald vs. Thompson-Starrett Co., 134 Minn. 117, 158 N. W. 913, 159 N. W. 565; State ex. rel. Virginia & Rainy Lake Co., 164 N. W. 585. This definition of the phrase "arising out of the employment," often quoted with approbation, is by Chief Justice Rugg in McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306: "It [the injury] arises out of the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from to the work and not common to the neighborhood. It must be |