dissenting.
Mrs. Sheets had been employed by the telephone company since 1923. She worked at the switchboard when necessary from 6:00 a. m. to 9:00 p. m., and after that she put on the alarm so she would hear it ring at night if she was away from that room, the switchboard being in her home. She had left the switchboard on this Sunday afternoon to get a drink — she may also' have put some milk in the cooler — and in going back in the house she fell and broke her hip.
The opinion in this case holds that this accident did not arise out of, or in the course of, her employment. It is a very close question, but for my part I am inclined to take the other view.
Supporting this theory, I might briefly refer to the case of Racine Rubber Co. v. Industrial Commission, 165 Wis. 600, 162 N. W. 664, where a factory hand was eating his lunch in the factory and a pile of rubber fell upon him and injured him, and it was held that he was performing a service growing out of and incidental to his employment.
In another Wisconsin case it was said: “Going for a drink in the customary manner is within the rule permitting recovery under the workmen’s compensation act for injuries received by an employee doing some act not prohibited and necessary or convenient to his health and comfort.” Widell Co. v. Industrial Commission, 180 Wis. 179, 192 N. W. 449.
“That truck helper left employer’s disabled truck * * * to go after drink of water did not remove him from ‘course *61of employment.’ ” Alabama, Concrete Pipe Co. v. Berry, 226 Ala. 204, 146 So. 271.
In the case of St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839, a member of a railroad bridge gang was injured while sleeping in a bunk car provided by his employer, and the court held as follows: “The plaintiff at the time of the accident was asleep on a car belonging to the company, provided by it'for that purpose, which was placed upon its side-track. He was liable to be called upon at any moment to go out with his gang upon duty upon the road. We think he must be held to have been upon duty at the time he received the injury. That the accident occurred when he was resting from his labors, we think makes no difference. He was subject to the call of the company at the time, and his case differs from that of other servants who engage for certain hours of employment and who are injured during the intervals in which the master has no claim upon their services.”
In the text of the opinion in Papinaw v. Grand Trunk R. Co., 189 Mich. 441, 155 N. W. 545, it is said: “Here it is shown conclusively that by his contract of hiring deceased was at the time of his death required to be within reach, liable at any time to be called to work upon the track, and in that sense on duty subject to his employer’s orders and control.”
In Miller v. Reisch Co., 132 Neb. 338, 271 N. W. 853, we held that a ranch employee, who was beaten by his foreman when he was eating his dinner, was engaged in a service growing out of and incidental to his employment.
In Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N. W. 89, an employee was crossing the street to take a taxicab to go to the railway station, and was killed by an automobile, and it was held that he was in some duty incidental to his employment at the time he was injured.
The case of Speas v. Boone County, 119 Neb. 58, 227 N. W. 87, is often referred to-. In this case a farmer was employed in dragging roads for Boone county, with his own teams, and stopped opposite his own driveway at 11:30 *62a. m., unhitched the four horses, and while putting his own horses in his own barn to feed them he was kicked and injured by one of them, and the county was held liable for his injury, because it was his duty to feed them.
Other cases in point may be cited: Favorite v. Kalamazoo State Hospital, 238 Mich. 566, 214 N. W. 229, where a nurse was injured by a fall in going from the hospital to the nurses’ home after her duties were performed for the day Parson v. Murphy, 101 Neb. 542, 163 N. W. 847; Baade v. Omaha Flour Mills Co., 118 Neb. 445, 225 N. W. 117; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N. W. 615; Struve v. City of Fremont, 125 Neb. 463, 250 N. W. 663.
This court has held that the workmen’s compensation act is one of general interest, not only to the workman and his employer, but as well to the state, and that it should be liberally construed, and that technical refinements of interpretation should not be permitted to defeat it. The act does not contemplate that an employee is a mere machine, required to stay at a particular place. His comfort and safety are committed largely to his own judgment.
Mrs. Sheets was not required to sit at the switchboard all of the time. This accident occurred on Sunday, when there were fewer calls than usual. She stepped out on the back porch to go to a pump and get a drink, which she had a perfect right to do. If the alarm had sounded while she was at the pump, she would have responded instantly. That was a reason why the switchboard was in her home, to save expense.
In the case at bar, Judge Blackledge, the trial judge, found: “The plaintiff while engaged in the performance of her duties as employee of Glenwood Telephone Company, a corporation, on the 30th day of June, 1935, suffered an accident and injury which arose out of and in the course of her employment for the said defendant in Adams county, Nebraska, and is compensable.” I am of the opinion that the finding of the district judge that the accident occurred during the course of her employment is amply sustained by the evidence and the authorities cited.