For the prosecutor, Arthur F. Mead.
For the respondent, McCarter & English.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The primary question here presented is whether respondent, while in the employ of prosecutors, suffered injury by an accident which arose out of and in the course of his employment, within the intendment of paragraph 7 of section 2 of the Workmen's Compensation act. Pamph. L. 1911, pp. 134, 136.
The essential facts follow: Respondent was employed as a laborer on a farm maintained by prosecutors at Towaco, in the county of Morris. His duties were general in character -- such as are ordinarily rendered by farm laborers. On the day in question, July 1st, 1933, at seven-thirty A.M., he entered the barn upon his employers' premises to assist in unloading a wagon containing hay, and found a cow in parturition. It was an abnormal presentation. The malpresentation consisted of a breech -- the hindquarters emerging first. The calf was unusually large, and was the cow's first born. A natural delivery being impossible, those in attendance resorted to the familiar principle of operative interference by the obstetric forceps, i.e., delivery accomplished by substituting for nature's process, or thereby supplementing it, muscular power exerted through a rope attached to the hind legs of the calf. The result was a terrifying ordeal -- especially for respondent, who was unprepared by a like prior experience. Overwhelming fear and consternation apparently seized him. The agonizing groans and the gory spectacle produced a shock to his nerves and senses of such severity as to paralyze his faculties. In the resultant state of unconsciousness, he fell to the concrete floor, and thereby suffered a skull fracture with consequent disability. His co-laborer, Mabie, seeking
escape, staggered from the barn, and fell unconscious on a grass plot outside. Respondent described the scene as a "terrible sight." The delivery was accompanied by "terrific agony and moaning." There was an award in the compensation bureau of compensation for temporary and permanent partial disability, and the writ brings up these proceedings.
The statute provides that, in event that the employer and employe shall by agreement, either express or implied, accept the provisions of section 2 thereof, "compensation for personal injuries to or for the death of such employe by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer," according to the schedule therein contained, with two exceptions, neither of which is here involved. Pamph. L. 1911, pp. 134, 136.
An "accident," within the purview of the act, is an unlooked-for mishap or untoward event which is not expected or designed. It arises out of and in the course of the employment if it results from a risk reasonably incident to the employment. The words "out of" refer to the origin and cause of the accident; the words "in the course of" to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident; the latter relate to the circumstances under which an accident of that character or quality occurs. The words "out of" connote an accident that is in some sense due to the employment -- an accident resulting from a risk reasonably incident to the employment. The legislative purpose was to provide for the risks of accident which are within the scope of the employment in which the workman is engaged. An accident happening while an employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be at that time, occurs "in the course of" the employment. An accident arises "out of" the employment when the risk of such an occurrence might reasonably be regarded as incidental to the employment. A risk is incidental to the employment when it belongs to or is connected
with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an ordinary risk, directly connected therewith, or one extraordinary in character, indirectly connected with the employment because of its special nature. ...