gression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.23 Collins, L. J., has said on this subject: "I agree that it is not every breach of a master's order which will determine a workman's employment so as to excuse the master from liability to his servant for injury resulting from breach of the orders. It is necessary to see exactly what is the sphere of the workman's employment, and, in my judgment, it is and must be competent for a master to define and limit what that sphere of employment is. If a workman acting absence of officials, from lower to higher levels in the mine by means of a sump shaft used for raising ore, and a miner who did this, instead of going up a ladder provided, was killed (Douglas v. United Mineral Mining Co., Ltd. [1900] 2 W. C. C. 15, C. A. [Act of 1897]); where a workman, seeking something necessary for his work, ascended to a furnace platform by means of a hoist, which was dangerous and forbidden, although it was not proved that he knew of the prohibition, and was killed (Logue v. Fullerton, Hodgart and Barclay [1901] 3 F. 1006, Ct. of Sess. [Act of 1897]); where, some heating being necessary, a ship's engineer during intensely cold weather rigged up a temporary stove, which he was warned would be dangerous to use at night, and was asphyxiated while so using it (Edmunds v. Owners of S. S. Peterston [1912] 5 B. W. C. C. 157, C. A.); and where a railway porter, after being reprimanded by the station master for jumping upon the footboards of incoming trains in violation of rules which had been given to him, but not read, was injured in a repetition of such act (McWilliam v. Great North of Scotland Railway Co. [1914] 7 B. W. C. C. 875, Ct. of Sess., and [1914] S. C. 453).

23 Plumb v. Cobden Flour Mills Co., Ltd. [1914] 7 B. W. C. C. 6.

Where a workman took an automobile which had been in use by his employers to distribute their newspaper, but which he, just before taking it out, had been ordered not to use, his representative could not recover compensation for his death. Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931; Barnes v. Nunnery Colliery Co., [1912] A. C. 44.

Where an employé, attempting to go to the place of his employment, insists upon riding upon his employer's wagon, contrary to the rules of his employer and the positive orders of the driver of the wagon, and in so doing falls from the wagon, suffering an injury, the accident does not happen in the course of his employment. Gonzales v. Lee Moor Contracting Co., 2 Cal. I. A. C. Dec. 302.

within that sphere violates an order of the master, the master may well be responsible. But if the workman travels out of the sphere as limited by the master, and acts in violation of the master's orders, or if the breach of the master's orders involves the workman's traveling outside the sphere of his limited employment, I do not think that the master would be liable for the consequences of the workman's acts either to the workman or to third persons.'

24

"Employment" within the meaning of these Acts refers rather to the contract than to the labor done in pursuance of the contract. Hence even the disobedience of a specific order to stop work does not end the employment for the time being.25 The employé's knowledge of a rule and the employer's acquiescence in violations. thereof may be material. Where there was a factory rule that workmen must not run to the time clock on their way to dinner, but such rule was not strictly enforced, and its violation was acquiesced in by the employer, and a workman while so running received fatal injuries by colliding with a fellow workman, the mere existence of the rule did not preclude recovery of compensation.2 In another case the injury was held to have arisen in the course of

26

24 Whitehead v. Reader (1901) 3 W. C. C. 40, C. A. (Act of 1897). The employé's breach of rules carried him outside the sphere of his employment where a collier in a coal mine was ordered to cut coal in the colliery, and left his work and went to cut coal in a part of the mine where it was forbidden by special rule to cut any, and thereby undermined some props, causing a fall which killed him (Weighill v. South Henton Coal Co., 4 B. W. C. C. 141), and where a workman employed to get flints on or near the surface of a quarry, though expressly forbidden to go into a trench 11 feet deep, to take shelter from a rain and also to get more flints, he being paid by the number of flints dug out, went into the trench and was smothered by a fall of earth (Parker v. Hambrook, 5 B. W. C. C. 608).

25 (P. L. 1911, p. 134) Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927.

26 Rayner v. Sligh Furniture Co., Op. Mich. Indus. Acc. Bd., Bul. No. 3, p. 22. The infraction of this rule by decedent was not such intentional and willful misconduct as to bar recovery, in view of the fact that it was the general custom of decedent's fellow employés and was tacitly permitted by respondent's foreman. Id.

the employment, although there was a special rule forbidding miners to return to a train of powder in less than thirty minutes, which, however, was not properly posted or generally observed, where a miner who had lighted a train to fire a shot returned in six minutes to see why there was no explosion, and, upon the shot then exploding, was injured.27 In an action for death of a miner from riding in a tub in a mine where riding in tubs was forbidden except by permission, but was permitted by the official in charge of other parts of the mine, and was acquiesced in by the official in charge of the workman's part of the mine, it was not proven that the miner knew of the rule, and the court held that he was killed in the course of his employment.28

§ 114. Deviation from original employment

If the employé, though outside the sphere of his original employment, is obeying specific instructions of his employer, he is within the course of his employment. When an injury arising from a risk of the business is suffered while the employé, though not strictly in the line of his obligatory duty, is still doing something incidental to his work, in going to or from the work or in the necessary intervals of a discontinuous employment, he will ordinarily be entitled to compensation.29 The same right to compensation follows

27 McNicol v. Speirs, Gibb & Co. (1899) 1 F. 604, Ct. of Sess. (Act of 1897). 28 Richardson v. Denton Colliery Co., Ltd. (1913) 6 B. W. C. C. 629, C. A. 29 Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368; International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330.

Where a brickmaker requires his teamster to use his team in carting for a neighbor, such service may be treated as an incident to his general employment. Dale v. Saunders Bros., 171 App. Div. 528, 157 N. Y. Supp. 1062. Where a workman sometimes used his motorcycle while on his employer's business, and often repaired it during business hours, the severing of his fingers in the chain guard was an accident in the course of his employment. Kingsley v. Donovan, 169 App. Div. 828, 155 N. Y. Supp. 801.

Where a reporter was ordered by his employer to get a first copy of the newspaper off the press to see if it was correctly made up, and was forcibly

when an injury arising from a risk of the business is suffered while the employé is doing something which, although entirely outside. of his obligatory duty, is permitted by his employer for their mutual

resisted by the pressman, though repeatedly and properly attempting to carry out his instructions, and then, as he was about to report the matter to his superior, and as a consequence of his efforts, was unexpectedly and without other provocation assaulted. The injury was sustained while performing service in the course of his employment. Brown v. Berkeley Daily Gazette, 2 Cal. I. A. C. Dec. 844. Where one is hired as a deck hand, they not being allowed in the engine room, but because of the failure of the engineer to report for duty such deck hand is ordered by the captain to go into the engine room and start the engine, the captain having made reasonable efforts to obtain instructions from his employer before starting the boat upon his own responsibility, and the deck hand is injured by accident while so engaged in accordance with the captain's orders, he is entitled to compensation. Graham v. Bay Counties Express Co., 2 Cal. I. A. C. Dec. 37. Where an employé of a firm dealing in racing motorcycles, in obedience to instructions given him by his employer, took a motorcycle out on a track to test its engine and speed, and, while speeding at 62 miles an hour, crashed into a fence, the resulting injury was in the course of his employment. Lawson v. Stockton Motorcycle & Supply Co., 2 Cal. I. A. C. Dec. 649. Where a trained millman employed to run an edging machine has no other duties, and is instructed never to repair machinery, but to leave all repairing to the millwright, and where, when the conveyor chain for removing sawdust from the pit under the band saw breaks, and the edgerman, without specific instructions, enters the pit to shovel out the sawdust, this being necessary before it can be repaired, such edgerman cannot be said to have gone outside the course of his employment. A trained millman may reasonably lend a hand without instructions in case of a breakdown in expediting repairs in other parts of the mill so long as he does not violate specific instructions given him, without stepping outside the general course of his duties, even though he be employed only to attend a particular machine. Winter v. Johnson-Pollock Lumber Co., 1 Cal. I. A. C. Dec. 387. Where a local agent of a fruit company, handling shipments of growers on commission, accommodated a fruit grower in urgent need of more help by some fruit packers and taking them in his automobile to the ranch, and while so doing was injured in an automobile collision, and it appearing that, although it was not specific duty to render this assistance to the growers, yet it was in the interest of the employer, and it was customary to do everything possible to increase the fruit pack and shipment, and the duties of the agent required him to go in the automobile provided by the employer throughout his field of operations and to town, such injury happened while he was performing service in the course of his employment. Brown v. Pioneer Fruit Co., 2 Cal. I. A. C. Dec. 827. Where a surveyor, laying out a

80

convenience, such as eating his dinner on the premises or some similar act to the performance of which the employer has assented. If a workman depart temporarily from his usual avocation to perform some act necessary to be done by some one for his master he does not cease to be acting in the course of his employment. He is then acting for his master, not for himself.

A rule

wagon road about a mile ahead of the construction work, was requested by the construction foreman to inspect an uncompleted bridge for suggestions, and in doing so was injured, the injury occurred in the course of his employment, although the specific authority of the foreman to make such a request was not proved, since such an inspection was within the general scope of the duties of a surveyor in such circumstances. Brackins v. Trinity Asbestos

Mining Co., 3 Cal. I. A. C. Dec. 22.

Where an employé, with a number of other employés, was standing in line before a pay window for the purpose of receiving his pay check, and some of the employés began pushing and shoving in a friendly way, and applicant was pushed out of line and received a fall from which he was injured, the mere scuffling does not take the employé temporarily out of the employment, but he is entitled to compensation for injuries sustained while on the grounds of the employer, for he was to all intents and purposes in the employ of the employer, and the injury arose in the course of his employment. Carls v. Pekin Cooperage Co., Bulletin No. 1, Ill., p. 75. Where an employer engaged in the manufacture of leather goods would occasionally have one of his employés go to his home to do work about the house, and the employé did whatever work was required by the ladies in charge of the household, which had been the practice for a number of years, and the city of Chicago required some improvement to be made upon the alley, which the employé was instructed to do, he stepping on a nail while so engaged, from which he contracted lockjaw and died, the fact that the employé was working at the private residence of the employer, under the foregoing statement of facts, does not affect the relation between the employer and employé, and the employé is entitled to compensation under the Act. Foreman Bros. Banking Co. v. George Lanz & Co., Bulletin No. 1, Ill., p. 81.

30 Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368; Blovell v. Sawyer (1904) 20 T. L. R. 105; Norris v. Lambeth Borough Council (1905) 8 W. C. C. 3; Moore v. Manchester Lines, Limited, 3 B. W. C. C. 527; McLoughlin v. Anderson, 4 B. W. C. C. 376; Emily Sundine Case, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Northwestern Insurance Co. v. Industrial Commission, 160 Wis. 633, 152 N. W. 416.

31 Hartz v. Hartford Faience Co. (1916) 90 Conn. 539, 97 Atl. 1020. That a shipping clerk temporarily departed from his usual work to lift a barrel