dissenting: I am unable to concur in the conclusion that the evidence in this case is sufficient to sustain a finding that the accident which caused the death of the employee arose out of his employment. In my opinion all the evidence tends to show that it was attributable to and arose out of his serious physical condition.
That an injury caused by accident is compensable only when the risk which resulted in injury was incident to the employment is now accepted law in this jurisdiction. Even so, an employee’s visits to a rest room in the course of his employment are to be anticipated by the employer. If in the course of such a trip he suffer an accident, nothing else appearing, the accident arises out of a risk incident to his employment. This may be conceded.
But something more appears on this record. The deceased was afflicted with idiopathic ulcerative colitis; his blood count was very *331low; be was in a weakened condition; be was subject to dizzy spells and was likely to faint at any time. Tbis condition frequently made bim feel tbe need of fresb air. While in tbe rest room, due to bis condition, be felt as tbougb be was going to faint — one of tbe effects of bis disease. He tried to get to a window for fresb air. In some manner be fell out tbe window. Tbus bis syncopic condition caused bim to leave tbe stall and rush to tbe window — bis ailment and not bis employment carried bim to tbe place of danger. It follows in my opinion tbat tbe risk out of wbicb tbe injury arose was not incident to tbe trip to tbe rest room or to bis employment. It is traceable, instead, directly and exclusively to bis physical condition. Lockey v. Cohen, Goldman & Co., 213 N. C., 356, 196 S. E., 342; Bryan v. T. A. Loving Co., 222 N. C., 724, 24 S. E. (2d), 751; Robbins v. Hosiery Mills, 220 N. C., 246, 17 S. E. (2d), 20; Plemmons v. White’s Service, Inc., 213 N. C., 148, 195 S. E., 370.
When an employee, in tbe course of bis employment, falls from tbe roof of a building or from a ladder or other place of danger where bis employment places bim, tbe accident arises out of tbe employment even tbougb illness may have been a contributing cause of tbe fall. There are many cases, such as those cited in tbe majority opinion, wbicb so bold. It seems to me tbat they are so clearly distinguishable discussion thereof is unnecessary. See Cox v. Kansas City Refining Co., 19 A. L. R., 90, and Anno., ibid., 95.
There is another reason why I am unwilling to concur in tbe affirmance of tbe judgment below. Tbe opinion of tbe bearing commissioner contains tbe following:
“Prior to tbe date of tbe last bearing in tbis case, tbe undersigned Commissioner visited tbe men’s washroom on tbe 11th floor of tbe Security Bank Building and found tbat tbe door to tbe men’s room was not latched; tbat it closed very slowly and tbis accounts for tbe reason why tbe deceased did not return to tbe office of Attorney Powers to borrow tbe key again; tbat tbe floor of tbe men’s washroom was of tile and that it was very slick.”
And later :
“. . . tbe Commission is convinced from all tbe facts and circumstances tbat Rewis’ feet slipped on the slick tile when he sought comfort at tbe open window.”
Tbe testimony is to tbe effect tbat tbe rest room has a tile floor; tbat tile is somewhat slicker than a wood floor; tbat when moist it was “liable” to be slick; tbat tbe floor was cleaned between 9 :00 and 10 :00 a.m. each day and tbat tbe accident occurred between 4:00 and 5 :00 p.m.
I can find in tbe testimony no evidence that deceased in going from tbe stall to tbe window slipped and fell. There was no noise of slipping *332or of a fall and no evidence that at tbe time tbe tile was moist and therefore slick.
There is, therefore, no evidence in the record to sustain these findings. The “very slick” condition of the tile floor, made a basic fact in support of the award, and the otherwise unexplained manner in which the deceased gained entrance to the rest room are made to appear by conditions “found” by the hearing commissioner on his private trip of inspection more than ten months after the accident.
These “findings” were approved by the full Commission. As approved they are found sufficient to support the conclusions of law made by the Commission and to support an award. I am unwilling to join in the affirmance of an award based on facts thus ascertained and “found” by the hearing commissioner and adopted by the full Commission.