For the respondent-prosecutor, Bolte, Miller & Repetto (Harry Miller, of counsel).
For the petitioner-respondent, Albert N. Shahadi (Vincent S. Haneman, of counsel).
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
PORTER, J. This is a workmen's compensation case. The writ brings before us for review the judgment of the Atlantic County Court of Common Pleas which affirmed an award to petitioner of the Workmen's Compensation Bureau.
The facts are not controverted. Frank Mixon was employed as a laborer by respondent in his house wrecking business. Building material was stored by respondent behind the house
in which Mixon lived. On July 29th, 1942, he was instructed to burn the lead from the joints which connected some four inch iron soil pipes in order that they be separated. To do this work Mixon built a fire in the yard and placed the pipes on it in a horizontal position, using a rake with metal tines and a wooden handle to rake the pipes off the fire. Late in the afternoon, while he was so engaged, there was a light rain storm accompanied by flashes of lightning. Mixon was struck by lightning and instantly killed. He was seen by his wife from the house at work with the rake at the fire, and when she went out, she found him lying ten or twelve feet from the fire with the rake in his hands. The county physician examined the body and found burns on his forehead, torso and right leg. He concluded that the lightning (electricity) had entered the head and left the body at the lower right leg. The hands and arms were not burned.
The sole question for our determination is whether this death arose out of the employment. An accident arises "out of" the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. Byrant, Adm'x, v. Fissell, 84 N.J.L. 72. When the employment brings a greater exposure than that to which persons generally in that locality are exposed, injury or death resulting therefrom, such injury or death does arise out of the employment. Kauffeld v. G. F. Pfund & Sons, 97 Id. 335. This accident concededly arose in the course of the employment. Both the Bureau and the Pleas found as a fact that it was an accident which arose out of the employment and so was compensable. With that conclusion we are unable to agree. The undisputed facts do not seem to us susceptible of that finding. It is our duty to review the facts as well as the law in compensation cases. Reis v. Breeze Corp., Inc., 129 Id. 138; Rotino v. J.P. Scanlon, Inc., 126 Id. 419.
The petitioner has the burden of proving by the weight of the evidence that this death resulted from an accident which arose out of the employment. The petitioner contends that Mixon was working near iron pipe with a metal rake with a wooden handle and that lightning was attracted to him
because of the nearness of this metal which acted as a lightning conductor, that he was therefore subjected to greater hazard than others in the locality at that time; hence the employment was a contributing cause of death. There was opinion testimony which, it is argued, supports that theory but which in the light of all the testimony we think does not sustain it. If that theory were correct and the lightning had been attracted to the metal on the ground, it seems to us that it would have entered Mixon's body via the rake. The absence of burns on the hands and arms and the fact that he had been struck in the head seems to us to entirely destroy this theory. It is also to be observed that there was no evidence that either the pipe or the rake had been struck or damaged. In weighing the testimony to ascertain whether it supports the petitioner's hypothesis, we must consider whether there is "a rational inference based upon a preponderance of probabilities according to the common experience of mankind." Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533. Tested by that rule, we think the hypothesis is not supported. On the other hand the respondent's expert, an electrical engineer and author of articles on natural lightning, who by experience was well qualified, gave his opinion that the lightning entered Mixon's head and that the metal ...