I dissent. Admittedly the first accident occurred in the course of the employment of the applicant. Admittedly the second accident did not. On the record I do not see wherein the injury sustained by him on the second accident — a fracture at the base of the neck of the femur— was attributable to the first accident or that it was the proximate cause of the injury, the fracture of the femur, for which compensation was awarded.
The commission undertook to find that the injury was attributable to the first accident, that it was the proximate *226and direct cause, or at least that the injury sustained in the first accident was a contributory cause. The findings in such particular are challenged as being unsupported by sufficient evidence to warrant or justify them. I think the contention is well founded. As to the first accident, the applicant testified that on May 13, 1928, while calling at a building for passengers, and while carrying two suit cases down a stairway, the heel of his left leg was caught on the top of a step, which caused him to miss his footing and “swing around going down one or two steps,” and wrenching his left leg and hurting him in the hip; that he sat down for a minute, and then went on with his work, taking the passengers to their destination. Evidence was given to show that he thereafter limped some, and complained of pain in his leg and hip, but continued with his work from day to day, driving and operating a cab until May 16, 1928, when he met with the second accident. The second accident he described as follows: On the morning of the 16th as he was walking down the street on the sidewalk to catch a street car to go to his work, not “hurrying extraordinarily for the car” but walking at a good gait, as he testified, he slipped and fell, fracturing the femur at the base of the neck. The accident may be best described in his own language.
“As I was walking down the sidewalk going to work I made a slight slip with my foot, and this caused me to take the weight of my body entirely on this leg.
“Q. You mean the left leg? A. Yes, it flipped right out of the socket.
“Q. And you went down? A. Yes. And I claim the injury of the 13th was the direct cause of my fall. * * * I was walking on the sidewalk, yes, and the hip joint gave away and came out while I was standing on my feet, causing a hot sensation to come over me, and I could not support myself.
“Q. And you went down? A. I went down, fracturing the bone.
“Q. In the hip? A. Yes. * * *
“Q. You didn’t stumble over anything on the 16th? A. No sir.
“Q. Just walking along? A. No sir, just walking along on the sidewalk, and it was perfectly clear.
“Q. In a natural way? A. Yes sir.
*227“Q. And while walking along your left leg gave way? A. Yes.
“Q. And you fell down? A. Yes, through a sudden step. It would not support the weight and it just flipped out.
“Q- How did you say it fell out; you say it flipped out? A. The muscle drew the leg up, the bone being out of the socket, and a rather hot sensation flashed over me. I didn’t exactly faint, but I felt weak. * * * I didn’t fall until the leg was entirely out of the socket. * * * I seen it was out because it flips out here, and a short time severe pain in the muscles. * * * You can feel it. It flips out and protrudes * * * I stepped on a little piece of mud and slipped just a slight slip. I didn’t lose my balance.”
The applicant was the only witness who testified concerning the happening of the accidents and how they occurred. His theory was that the first accident dislocated, or partially dislocated, the hip joint, causing the bones to “protrude” and “flip” out and in, and, as he was walking along the sidewalk and throwing the weight of his body on the left leg, the bone “flipped out of the socket,” throwing him on the sidewalk and fracturing the neck of the femur. After the fall, he was taken to a nearby hospital, where-a physician and surgeon was summoned who attended him; The physician was called as a witness on behalf of the applicant. The direct examination' was conducted by the chairman of the commission. The witness testified that on his examination and on X-ray pictures a fracture at the base of the neck of the left femur was revealed, but that there was no displacement or subluxation of the hip. Then the chairman of the commission propounded to the witness a so-called hypothetical question in which he recited the happening of the first accident whereby the applicant slipped on a stairway and wrenched “his left leg and hip”; that thereafter he complained of pain and limped, but continued on with his work; that three days thereafter he stepped on a piece of mud and his right leg slipped, throwing his weight on the left leg; “that the pain was very severe; that his left hip was protruding, and he went down unable to support himself on his left leg,” and, assuming the applicant’s testimony to be true, the physician was asked *228whether the injury sustained by the applicant on the first accident “so weakened his left leg that it made him susceptible to the fall he sustained on May 16th.” Though the question was so put as to show the wish to be father to the thought, and with the expected hope that the witness would himself decide the case — express an opinion on the ultimate and essential issue which the commission was itself required to answer — yet the witness but answered:
“That is a pretty difficult question to answer accurately. There may have been some weakness from the original fall. On the other hand, he may have sustained a fracture without any previous injury, with this type of fall.”
The witness further answered that the X-ray examination revealed a chronic condition of the bone of long standing which had the appearance of a chronic osteomylitis of the bone; that, while he had not definitely diagnosed the condition; as osteomylitis, but stated there was an undoubted chronic condition of a weakening of the bone of long standing which had the nearest resemblance of osteomylitis. Such testimony was not disputed.
Then the commissioner asked the witness that, “assuming the applicant has testified to the truth,” and again reciting the testimony of the applicant with respect to the two accidents, and that on the second accident the applicant threw “all his weight” on the left leg, and could not sustain himself, and fell and fractured his left hip, “do you connect the injury of May 13th, assuming the facts as I have related them, with the fall of the 16th?” The witness answered:
“There is a bare possibility of the first injury weakening the bone to a slight extent, but not a bone fracture, however, because I don’t believe it would be possible for him to continue the use of the leg for three days in the presence of a fracture, — the first injury might have been sufficient to call his attention to the condition he already had.
“Q. And that be sufficient to weaken himself so he could not sustain himself as he had been able to do before May 13th? A. That is impossible to tell.
*229“Q. Would you have to rely largely upon the applicant himself as to that? A. I think the only definite answer that could be given, you would have to have a picture immediately following the first injury.”
Then, in response to further questions, the witness answered that, in the absence of pictures, he would have to rely largely on the history given him by the applicant, “but, on the other hand, a diseased condition of the bone like this may be fractured at any time with a comparatively trivial amount of injury or trauma.”
Then the commissioner propounded a further hypothetical question to the witness, again reciting that it be assumed the applicant had pain in his hip whenever he put his weight on the left leg, experienced pain when he used his foot on the pedal of the automobile, and that, when he slipped on the morning of the 16th and threw his weight on the left leg, “it was so painful he could not sustain himself and fell over. Assuming that to be the fact, would you say that the injury of May 13th had some bearing on that of the 16th?” Then the witness answered as set forth in the prevailing opinion that:
“Yes, very likely contributed to Ms inability to support himself, and prevent having an additional fall.
“Q. In other words, you tMnk it was contributory? A. It probably contributed to Ms falling the second time.
“Q. By weakening the left leg? A. By the pain wMch he apparently sustained in supporting all his weight was too severe, assuming that Mstory is correct, so severe that he actually fell and then sustained a fracture.
“Q. Did you have any conversation with the applicant regarding the injury of the 13th, how it affected him the day of the fall? A. Yes, he told me substantially the same story as is in the record.”
There the quotation in the prevailing opinion ends, but immediately following that the witness was asked:
“Q. With that history am I to understand that you think the fall of May 13th was a contributory cause to Ms fall on May 16th? A. It might contribute to the fall. I would not say that it did *230contribute. I could not say that it would be a part of the final fracture.”
Thus, when the whole of the testimony of the physician is considered, as I think it should be, I think it clear that, notwithstanding the frequent admonitions of the commissioner that the witness was required to assume as true everything testified to by the applicant, yet no opinion was expressed by him that the first accident or the first injury was a contributory cause to the second accident or to the second injury, and that his testimony, viewed in a light most favorable to the applicant, is that, because of the pain claimed to have been suffered by the applicant, the first fall “might have contributed” to the second fall, but he would not say that “it did contribute,” and that there was only a bare possibility that the first injury weakened the bone to a slight extent, but that it was not the cause of the fracture. Evidence even before the commission that a condition or matter required to be proven “might” have occurred or that there was a “possibility” that it did occur is mere conjecture and wholly insufficient to establish the matter required to be proven.
On the record I think it clear that, as the applicant was walking down the street at a good gait to catch a street car, he slipped and fell, and, because of such fall and of the undisputed osteomylitis condition of long standing of the bone of the femur, he fractured the neck of it as he fell on the sidewalk, and that such outstanding factor may not be pushed aside by the ridiculous and absurd claim of the applicant, and on its face self-impeached, that after the first fall he was walking and moving around performing the ordinary duties of his work with the bone of the hip “protruding” and “flipping” in and out of the socket as he threw his weight off and on the left leg.
In Rollow v. Ogden City, 66 Utah 475, 243 P. 791, this court said that the proximate cause of an injury is the primary and moving cause, without which it would not have *231been inflicted, but which in the natural and probable sequence of events, and without the intervention of any new or independent cause, produced the injury. Measured by this test, I think it clear that the first accident or injury was not, in any sense, the primary cause which, in the natural and probable sequence of events, and without the intervention. of a new or independent cause, produced the fracture of the femur for which compensation was awarded, but that such injury was produced by a new and independent cause, for which the employer was not liable, and which was not compensable.
I therefore think the award should be set aside.
EPHRAIM HANSON, J. I concur in the views expressed by Mr. Justice STRAUP in his dissenting opinion.