In this action the plaintiff seeks to recover compensation under the Employers’ Liability Act for total dis- ' ability to do any work of a reasonable character, alleged to have resulted from injuries received while in the employ of the defendant.
On trial the District Court rendered ■ judgment denying the right of recovery for disability to work, but held that plaintiff had sustained serious permanent disfigurement, awarding compensation under Clause (e) of Subsection 1 of Section 8 of the statute.
The defendant appealed, and plaintiff answered the appeal praying that the judgment be amended and compensation awarded as originally prayed for.
OPINION
The .plaintiff contends he suffered injuries in two accidents, one on January 27, 1925, and the other on March 4, 1925, which had disabled him.
The evidence, we think, rather conclusively establishes that plaintiff was not disabled by the injuries received in the accident of January 27, 1925, from doing work of the character in which he was engaged at the time of the accident, as it appears that after being laid off for a short time he returned and took up the same employment, receiving the' same wages, and accepted compensation for the time lost without protest; that he made no complaint, and performed the duties of his work, putting in full time without complaint.
As to his injuries resulting from the accident of date March 4, 1925, the- physicians who examined him some five months after the accident stated that they could not find any objective symptoms which would indicate he was disabled from working at his former employment (log-setter in a sawmill), and the evidence shows that within about twenty days after the accident he returned to the defendant’s service and worked for several days and was engaged in handling the ‘‘log-carriage” at the time of his discharge, which discharge was not by reason of his incompetency but rather from his taking offense on being reprimanded for not cutting the lumber as directed.
On the other hand, the evidence shows that the injuries which plaintiff received in the accident of date March 4, 1925, were serious, being a Wound on the head and a fracture of the spine, and he states that he has suffered since with headache, backache and dizziness, and has been unable to work continuously from day to day.
*91The physicians who examined him stated that the wound on the head was a scalp wound and had healed, leaving, however, a scar which was permanent, and that the injury to his spine was in process of healing but had not entirely healed at the time of the examination.
One of the physicians who attended plaintiff after the accident on the 4th of March, 1925, until the 16th of April, when plaintiff was discharged from further attention, says that plaintiff had complained of dzziness during the time he was treated, but that he had ceased to make any complaint before the time he discontinued his services.
The statement of plaintif as to his inability to work continuously is corroborated by the testimony of other parties, who testified that plaintiff, who has been engaged in working for a box factory at Natchez, Mississippi, would remain off duty and in bed for several days in each week.
. Tihe evidence does not indicate that plaintiff is a malingerer; on the contrary, it indicates a willingness to worl?, and although the opinion of the physicians was that the objective symptoms did not indicate any disability, we are of the opinion that the seriousness of the wounds received by plaintiff, and his testimony as to his disability, which is in a manner corroborated by the testimony of persons who had opportunity to observe plaintiff since the accident, establishes that plaintiff is partially disabled from doing work of a reasonable character.
As to the liablity of the defendant, it is contended that the accident did not arise in the course and out of the employment for the reason that it occurred on the public highway and from, a hazard or risk to which the plaintiff, as well as all other persons who ■ used the highway, were subjected.
There is no exact rule by which it may be determined whether or not any given accident in which an .employee is injured arose, in the course and out of the employment, but the relationship of the accident to the employment must be determined with reference to the facts in each case.
The evidence in this case shows the plant or premises of defendant where plaintiff was employed was located adjacent and contiguous to the highway over which the employees had access to the premises, and that plaintiff, who was on his way to lunch at the noon hour, while crossing the highway at a point contiguous to the premises, was struck by an automobile being driven by its owner, who was an employee of defendant and fellow employee of plaintiff, and who was at the time leaving the premises on his way to lunch.
We are of the opinion that the place of the accident, being in close proximity to the place of employment and being the way over which plaintiff had access to the premises, and the time to have been when he was leaving the premises for lunch, the accident arose in the course of the employment. (Jones vs. Louisiana Central Lumber Co., 2 La. App. 260; Cudahy Packing Co. vs. Parramore, 263 U. S. 418; 68 Law Ed. 366). And that, the risk of crossing the highway, being increased by reason of its use at the time of the accident by the fellow employee of plaintiff, the plaintiff was subjected to a greater *92hazard by reason of the employment than would have been the case for one not thus engaged, and that the accident arose out of the employment. (Myers vs. La. Ry. & N. Co., 140 La. 937, 74 South. 256; Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677; Ferguson vs. Cady-McFarlane Gravel Co., 156 La. 871, 101 South. 248.)
The plaintiff was receiving at the time of the accident twenty-four dollars per week, and the evidence shows that he is earning eight dollars per week in a similar employment. He is entitled to recover sixty-five per cent of the difference between twenty-four dollars and eight dollars for a period of three hundred weeks under Clause (c) of Subsection 1 of Section 8 of the statute, as amended by Act No. 216 of 1924.
It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that plaintiff have and recover judgment against defendant in the sum of ten and 40-100 dollars per week for a period not exceeding three hundred weeks, beginning on March 5, 1925, with five per cent per annum interest on all payments from date of maturity until paid and all costs of suit, and as thus amended the judgment appealed from be affirmed, the cost of appeal to be paid by defendant.