(Concurring Generally). — I concur in-the reasons given by the Chief Justice for the decision and such reasons, with the additional reasons set forth below, considered, I concur in the decision and order reversing and remanding the cause for a new trial. The reasons I have to-advance concern that part of the contention as follows:
“That the plaintiff had failed to establish . . . that the-accident was not shown to have arisen out of or in the course of the labor, services or -employment for which he was engaged by the defendant company.”
The grounds for directing the verdict, which have been, fully considered in the opinion of the Chief Justice, precede those I propose discussing. The decision reached by the: *159Chief Justice necessarily includes a consideration of the grounds I propose to further discuss, but I propose giving reasons for my decision of the questions presented, in addition to those already stated.
The “Employers’ Liability Act,” chapter 6, title 14, Civil Code of Arizona of 1913, paragraph 3156, declares certain designated occupations as hazardous within the meaning of the chapter. Subdivision (2) designates that “all work when making, using or necessitating dangerous proximity to gunpowder, blasting powder, dynamite, compressed air, or any other explosive,” and subdivision (9) designates that “all work in the construction and repair of tunnels, subways and viaducts,” are of hazardous occupations.
The parties concede that the occupation in which the defendant company was engaged at the time the alleged accident occurred was that of the construction of a tunnel, and by the use of dynamite or blasting powder, therefore the alleged accident is one in an occupation declared to be hazardous within the meaning of the Employers’ Liability Act, paragraph 3155.
Paragraph 3157 requires employers of workmen in such hazardous occupations to adopt rules, regulations and instructions for the information of their employees in such occupations, as to the duties of their employment, “to the end of protecting the safety of employees in such employment.”
Paragraph 3158 provides:
“When in the course of work in any of the employments or occupations enumerated in the preceding section, personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employee shall not have been caused by the negligence of the employee killed or injured, then the employer of such employee shall be liable in damages to the employee injured, ’ ’ etc.
Hence in order for the liability to arise under this chapter the injured person must have been employed by the defendant to perform work in some of the employments or occupations enumerated as hazardous, and the accident must have been due to a condition of the employment, which is con*160ceded, and at the time of the accident from which the injury arose he was occupied in the performance of some duty for which he was employed, and the accident inflicting the injury arose out of and in the course of such labor, service, or employment.
The right to recover is only limited “to the employee injured.” Paragraph 3158.
In the case of In re Employers' Liability Assur. Corp. (McNicol’s Case), 215 Mass. 497, L. R. A. 1916A, 306, 102 N. E. 697, the Massachusetts court had before it the meaning of the words, “arising out of and in the course of his ■employment,” as those words are used in the Workmen’s Compensation Act. Those words are used in our statute, supra, with reference to the employer’s liability, but with no different meaning from that in which they were used in the statute under consideration by the Massachusetts court. The scope of the phrases as they are used both in the Massachusetts and the Arizona statute seems to be the same.
The court said: “ In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. . 1 . It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It ‘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 workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need mot have been foreseen or expected, but after the event it *161must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”
In Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, it was said:
“To warrant a recovery, it must appear that Bryant’s [the employee’s] death was caused by (a) an accident (b) arising out of, and (c) in the course of, his employment. Even though the injury arose out of and in the course of the employment, if it be not an ‘accident,’ within the purview of the act, there can be no recovery. Even if there be an accident which occurred ‘in the course of’ the employment, if it did not arise ‘out of the employment,’ there can be no recovery; and even though there be an accident which arose 'out of the employment,’ if it did not arise ‘in the course of the employment, ’ there can be no recovery. ’ ’
In Bryant v. Fissell, supra, the court said:
“The burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employee was caused by ‘an accident arising out of and in the course of his employment’ rests upon the claimant.
See, also, Plumb v. Cobden Flour Mills Co., Ann. Gas. 1914B, 495, and cases cited in note thereto.
If the law is as declared by these authorities, as applicable to the Employees’ Compensation Act, when it is employed in connection with substantially the same context, I am of the opinion that the same rules of law are equally applicable to our Employers’ Liability Act using the identical phrases there considered. Such being the meaning and scope of the phrases, the fact that the accident was due to a condition of the employment conceded, we are only concerned with the question whether the plaintiff has by his evidence sustained the burden of proof from which the inference can be legitimately drawn that the injury here complained of was caused by an accident arising out of and in the course of the employment ; that is, in the course of the performance by plaintiff of a duty required of Mm by his employer.
No question is raised whether plaintiff was employed by defendant in some capacity, and that he was occupied in defendant’s service at the time he received the injuries. In his *162testimony he describes the conditions surrounding, and the accident, as follows:
“On May 10th, the day this accident occurred, I left Tucson in the morning and went out to Yail, and when I got to camp the night shift had gone off duty and had left some holes to be shot. I arrived at camp about 12 o’clock I think. I loaded these holes and primed them. I loaded the holes myself. ... I had been in the habit of doing this work there off and on. ... I loaded the holes, and lighted the fuses. There were three holes charged. They were lower bench holes, the three of them, and about four feet in depth, and we shot the middle one first, and then shot the outside ones to break in toward the center hole. We loaded that center hole a little heavier than the outside holes and cut the fuse shorter so that it goes off first, and then the outer holes broke into the opening that this inside hole has broken in. That is the ordinary way of loading these holes and firing them. ... I loaded the middle hole as the fuse was about three or four inches shorter than the outside fuse, and I held the fuses all together and lighted them at the same time, and saw that all three were lit. That is the ordinary way of blasting. The way ordinarily pursued in that class of work so far as I know. After lighting the fuses, we retired up the creek, probably 400 or 500 feet to await the explosion. I timed the fuses at the time I lit them. They should have exploded within four or five minutes. Two of them exploded within five minutes and the other did not explode. After the first two holes exploded I waited for some little time, probably ten minutes. My brother, the man that drilled the holes, and the engineer were with me. . . . After waiting ten minutes, I walked back to the face of the tunnel. The tunnel was full' of gas, and one of the boys started in, but it was so full of gas that he came back out. We then looked around a while, and we went over and I told the boys we would go over and have dinner, and after dinner we would work in the other-end of the tunnel. We had dinner at the camp, which is. about 600 or 700 feet from the tunnel. We waited practically, I should imagine, half an hour before dinner was ready. . . . After dinner we went back there and I put the other boys to work — got the engine or compressor started, and put the boys to work in the other end of the tunnel. I *163loafed around a while to see what was going on and intended to go home, but it struck me that in case the night shift came on, they might drill into that hole and have a serious explosion. So I thought that after being so long that I had better go back and see what had happened to it. ... I went back into the tunnel; the tunnel was clear, and I had just reached the face of the tunnel when the explosion occurred. That, I think, was about an hour and a half after I had lighted it. "When I got into the tunnel there was nothing to indicate that there was still fire in the hole. ... I went into the face of the tunnel to see why the hole hadn’t gone off and see if the fuse had gone out, or what had happened, to keep it from having an explosion when the boys drilled in to it on the night shift. ...”
On cross-examination he stated:
“No one directed me to go into the tunnel. I went in there of my own accord and as superintendent of the company to ascertain what was the matter. No officer or agent of the company gave me any instructions as to going into the tunnel.”
This is all the evidence as it relates to the occupation of plaintiff at the time the accident occurred. His purpose for going into the tunnel is clearly stated as one to protect the night shift from injury in ease they might drill into the misfired hole and cause an explosion. Was this act one in the course of the superintendent’s employment? Was the protection of the workmen, in furnishing them a safe place to work, within the scope of the superintendent’s duties? Certainly it was the duty of the employer to furnish the workmen a safe place to work, and such duty must have been delegated to a superintendent given complete charge of the work and made his duty to see that such safety was provided.
This was a question for the jury to determine from the evidence, and I am of the opinion that the evidence given should have been submitted to the jury, and if deemed satisfactory as establishing the fact that the purpose of the superintendent in going into the tunnel was to care for the safety of the workmen under his charge, he was performing his duty as an employee and entitled to recover as such under paragraph 3158, supra.
*164Such verdict on such evidence must necessarily be sustained on appeal as one supported by substantial evidence. As superintendent in charge of the work of defendant, what more important service could he render his employer “to the end of protecting the safety of employees in such employment.” Paragraph 3157, Civil Code of Arizona 1913. And whether he went into the tunnel in the circumstances set forth in his testimony, as a mere volunteer, or in obedience to express rules, regulations, or instructions, promulgated by the employer, or as one employee promoting the best interests of his employer to fulfill a duty impliedly resting upon him by virtue of his employment, is the question for determination by the jury’s verdict in every such case. If he entered the tunnel as a mere volunteer, no matter how noble the purpose prompting, he was not acting in the course of his employment, and cannot recover. If he entered the tunnel because his employment expressly or impliedly called upon him to do so, he was acting within the scope of his duty, and the act was in the course of his employment, and he was entitled to recover.
I am therefore of the opinion that the court erred in directing the verdict, and the judgment should be reversed because of the erroneous instruction.
As to constitutionality, application and effect of the federal Employer’s Liability Act, see notes in 47 L. R. A. (N. S.) 38; L. R. A. 1916C, 47.