On Petition to Rehear
The petition to rehear embraces three points: (1) That the original opinion failed to show why the two cases cited by plaintiff in error are not controlling, which cases are: Shuck v. Carney, 22 Tenn. App. 125, 118 S.W.2d 896, and Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101, 66 S.W.2d 997. (2) That the question whether or not the accident arose out of and within the course of the employment, is a question of law and not a question of fact. (3) That it is certainly unknown and unheard of for the employee to put a shovel through the handle of a bucket with burning diesel oil in it and to move the bucket' across the ditch.
*351In response to (1) above, it seems sufficient to say that those two cases are tort cases where the question involved was the responsibility of the employer for the unauthorized and unforeseeable negligent act of the servant resulting in injury to a third party. But unforesee-ableness and proximate cause as used in the law of negligence, are not tests in Workmen’s Compensation cases. The rule is reiterated in Davis v. Wabash Screen Door Co., 1947, 185 Tenn. 169, 204 S.W.2d 87, wherein it is said in substance, that 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. It need not have been foreseen' or expected, but after the event it must appear to have had its origin in a risk connected with the employment and have flowed from that source as a rational consequence.
Then in Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 997, it is said that the burden rests upon the employee to show a causal connection between his injury and his employment, but that by causal connection is meant — not proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee of doing the work. Again — in Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, it is said that it is sufficient, if after the event there is apparent to the rational mind, a causal connection between the conditions under which the work is required to be performed and the resulting injury. The only way he can show these two things is by offering evidence tending to induce these two conclusions. If there be any conflict in the evidence *352of the opposing sides, as tliere is here, or in the inferences to .be drawn from same as here, or where the evidence is undisputed but the minds of reasonable men may draw different conclusions from same, it cannot be said that only a pure question of law is presented in a Workmen’s Compensation case any more correctly than if the question were whether to direct a verdict in a jury case. Hence, there is no merit in the proposition (2) above.
Reference to the original opinion will readily disclose that the employee in this case has brought himself within the above requirements. He was at his post of duty doing the very work that he had contracted to do and the effort to keep his hands warm by means of the fire in the bucket down in the trench was brought about by the conditions of cold and dampness under which he was working and it would seem that keeping his hands reasonably warm would tend to further the work of his employer.
With reference to the third proposition — -we refer first — to what was said under proposition No. 1 as to what is the proper test in Compensation cases, and secondly, it seems the most natural thing conceivable for this employee to have used his shovel for the purpose of removing a bucket filled with fire in order to prevent from burning the batter boards because, so far as the proof shows, the shovel was the only instrument he had in the ditch with him by means of which he could move the bucket.
The only other question raised in the petition was disposed of fully in the original opinion. We, therefore, overrule the petition to rehear.