#### Northwestern Iron Company, Appellant, vs. Industrial Commission and another, Respondents.

*April 13*

May 4, *1915.*

*WorTcmen’s compensation: Injury to. employee while warming himself: 'Negligence.*

1. The duties of an employee were to dump tram cars containing ■briquettes of iron ore as they came from kilns, pick up briquettes which had fallen, and transfer the cars to the return track. In the intervals between the comings of cars he had *634some leisure time which he was expected to pass as best he could. On a cold night, after a car came out, he sat or lay down on the track in front of it to warm himself from the hot briquettes, and was caught and injured by the next car. *Held,,*that at the time of the accident he was “performing service growing out of and incidental to his employment,” within the meaning of sub. (2), sec. 2394- — 3, Stats. 1913.

2. Negligence of the employee in such a case does not deprive him of the right to compensation.

Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNs, Circuit Iudge.

*Affirmed.*

Action under sec. 2394 — 19, Stats., to set aside an award of tbe *Industrial Commission*in favor of tbe defendant *Kret-Icovich*for personal injuries suffered by bim February 15, 1914, while in tbe employ of tbe plaintiff. Tbe plaintiff claims tbat tbe *Commission*acted in excess of its powers because tbe evidence showed tbat at the time tbe accident occurred the claimant was *not*performing *services growing out*of and incidental to bis employment. Tbe order of tbe *Commission*was affirmed by tbe circuit court, and from tbat judgment tbe plaintiff appeals.

Tbe defendant has an iron-briquetting plant at Mavville. Tbe briquettes pass through kilns and are then placed on small dump cars which run unattended on iron tracks out into tbe yard about 200 feet, and are there dumped by employees and placed upon a transfer track for return to tbe kilns. A ear comes out about every fifteen minutes. On the night of tbe accident tbe claimant, *Kretleovich,*and one Vignovich were doing this work on separate tracks, tbe former on No. 2 track and tbe latter on No. 4 track. Briquettes drop from tbe cars in their progress and tbe dumpers are required to pick them up. Between tbe cars tbe men have about five minutes leisure time on tbe average. Tbe night was cold. Tbe men started to work tbat night at 6 o’clock. Tbe accident happened at about half-past 10. Both tbe claimant and Vignovich-testified through an interpreter and *635tbeir testimony is not easy to understand. Tbe purport of tbe claimant’s story is tbat be bad blocked, a car at tbe end of its run and was picking up briquettes wbicb bad fallen from it, wben another car came unexpectedly and caugbt bim between tbe two cars. Vignovich testified tbat a car came out on No. 2 track and be and claimant blocked it and sat down in front of it to get warm, tbe briquettes being hot and tbe night cold; tbat after a few minutes be went over to No. 4 track, some twenty-five feet distant, and left *Krethovich*lying on tbe track in front of tbe car; tbat eight or ten minutes afterward be beard *Krethovich*boiler and went over and found bim between tbe tracks, caugbt between tbe two cars; tbat be didn’t know tbat *Krethovich*got hurt until be hollered.

Tbe *Üommission*did not determine wbicb story was correct, but held tbat in either case tbe cdmpany was liable for compensation, because in either case tbe claimant was in a legal sense performing services growing out of and incidental to bis employment.

*Edward 0.*Wilmer, for tbe appellant, contended, *inter*alia,

tbat although mere negligence of tbe employee as such does not relieve tbe employer of liability for compensation, an employee may carelessly and negligently subject himself to hazards entirely foreign to bis employment and have no right to compensation because bis injury did not arise or grow out of bis employment, because it did not follow an accident within tbe meaning of tbe law. Royd, 'Workm. Comp. § 474; 1 Bradbury, Workm. Comp. (2d ed.) 398; *Kunza v. G. & N. W. B. Go.*140 Wis. 440, 123 N, W. 403; *McNicoVs*Case, 215 Mass. 497, 102 N. E. 697; *Williams v. Wigan O. & I. Go.*3 Butterwortb’s Workm. C. C. 65; *Thomson v. Flem-ington G. Go.*48 Scot. Law Rep. 740, 4 Butterwortb’s Workm. O. O. 406; *Brice v. Edward*Lloyd, *Ltd.*[1909] 2 K. B. 804, 127 L. T. Jour. 322, 2 Butterwortb’s Workm. C. C. 26; *Gane v. Norton H. 0. Go.*[1909] 2 K. B. 539, 100 Law Times, 979, 2 Butterwortb’s Workm. C. C. 42.

*636For tbe respondent *Industrial Commission*there was a brief by the *Attorney General*and *Winfield W. Gilman,*assistant attorney general, and oral argument by *Mr. Gilman.*

They cited, among other cases, *Oharron v. Nortlvwestern F. Go.*149 Wis. 240, 134 N. W. 1048; *Haclcett v. Wis. Gent. JR,. Go.*141 Wis. 464, 124 N. W. 1018 ; *Ku/nza v. G. &■ N. W. JR. Go.*140 Wis. 440, 123 N. W. 403; *Houston, E. & W. T. R. Go. v. Molíale,*47 Tex. Civ. App. 360, 105 S. W. 1149; *Jacobson v. Merrill & R. M. Go.*107 Minn. 74, 119 N. W. 510, 22 L. R. A. N. s. 309; *Chambers v. Woodbury Mfg. Go.*106 Md. 496, 68 Atl. 290, 14 L. R. A. N. s. 383; *Pittsburg V. P. & B. B. Go. v. Fisher,*79 Kan. 576, 100 Pac. 507; *Mullery v. Missouri & K. T. Co.*(Mo.) 168 S. W. 213; Dawbarn, Emp. Liab. & Worltm.'Oomp. (4th ed.) 169; *Milwaukee v. Althoff,*156 Wis. 68, 145 N. W. 238; Dawbarn, Workm. Comp. App. (1912-13) 28; *Parkinson 8. Go. v. Riley,*50 Kan. 401, 31 Pac. 1090, 34 Am. St. Rep. 123; *Bertha Z. Go. v. Martins Adm’r,*93 Va. 791, 22 S. E. 869, 70 L. R. A. 999; *Edmunds v. Peterson,*28 T. L. Rep. 18, 5 Butterworth’s Workm. C. O. 157; *Henderson v. Glasgow,*37 Scot. Law Rep. 857, 8 Scot. L. T. 118; *Sheehy v. G. 8. & W. R. Go.*47 Irish L. T. 161, 6 Butterworth’s Workm. C. C. 927.

WiNsnow, O. J.

The claimant’s duties were to dump the tram car when it- came out, pick up the fallen briquettes, transfer the car to the return track, and wait for another car. Apparently he had intervals of rest when he was expected to pass the time as best he could, although exposed to the weather on a cold night. If we credit the claimant’s own story, there is no question about his right to compensation, because he was picking up briquettes at the time the second car came from the kiln and struck him.

The *Commission,*however, did not decide whether the claimant or Vignovich told the truth, but held that in either case compensation must be paid, hence we must consider the case on the assumption that the story told by Vignovich is *637true. This story is in effect that, tbe nigbt being cold, tbey blocked a car as it came out and sat down on tbe track in front of it to get warm from tbe beat of tbe briquettes, which were just out of tbe kiln; that in a few minutes he left claimant lying on tbe track in front of tbe car and went over to bis own track twenty-five feet away, and some minutes later beard claimant boiler and came over and found him caught between tbe cars. Tbe only reasonable inference from this testimony seems to be that tbe claimant, instead of at once proceeding to pick up tbe fallen briquettes, dump tbe car, and thus prepare to receive tbe next car, blocked tbe car and proceeded to sit down or lie down in front of it in order to get warm, and was there caught by the next car either while be was engaged in getting warm or while be was picking up briquettes after be bad got warm.- This would be good ground upon which to find tbe claimant negligent, but negligence does not prevent compensation.

Clearly this testimony does not show that tbe injury was intentionally self-inflicted; hence 'the only question is, Does it show that at tbe time of tbe accident tbe claimant was not performing service growing out of and incidental to bis employment? We think not.

Tbe man’s duties involved periods of leisure during which apparently be was expected to kill time as best be might, with no specific direction as to what be should do or where be should wait. Tbe nigbt was cold and be put off dumping tbe car until be could warm himself from its heated contents. To say that in so doing be bad left tbe master’s employment, was pursuing his own private purposes, and doing something foreign to tbe work be was employed to do, is illogical to a degree. To protect himself from undue and unnecessary exposure to tbe cold was a duty be owed bis master as well as himself, and it does not follow that be left bis master’s employment because be negligently allowed the second, car to run into him while be was warming himself.

*By the Ootirt.*— Judgment affirmed.