Leslie Andrews worked as a painter for appellant and, while engaged in the course of his employment, he was seized with an attack of *Page 103 epilepsy. Falling upon a concrete walk where his duties as painter had taken him, he sustained a fracture of the skull which caused his death. His injury was due to the fact that his employment required him to be in a place where the fall proximately caused the injury. The disposition of this claim by the State Industrial Board and by the Appellate Division in making an award in favor of the dependent mother conforms, I think, with our ruling in Matter of Mausert v. Albany BuildersSupply Co. (250 N.Y. 21) and with all other decisions which I can find except that of Rodger v. School Board of Paisley (49 Scot. Law Rep. 413), which has never, prior to our present decision, been accepted by this court and has been virtually overruled by the courts in Scotland and England.
Subjection of the average person to an ordinary risk is no longer one of the tests for determining the question whether the injury arises out of the employment. Whatever the earlier decisions may have been, they are rendered obsolete by such cases as Dennis v. White Co. ([1917] App. Cas. 479); Thom v.Sinclair ([1917] App. Cas. 127); Matter of Redner v. Faber Son (223 N.Y. 379); Matter of Leonbruno v. Champlain SilkMills (229 N.Y. 470) and Matter of Katz v. Kadans Co. (232 N.Y. 420). The test is the relation of the service to the injury, of the employment to the risk. (Matter of Leonbruno v.Champlain Silk Mills, supra.) The risk need not be one peculiar to the injured employee nor one from which the general public is exempt. Slipping on an icy road or walk is a hazard to which all are liable, yet, when the work requires exposure to such a risk, the injury arises out of the employment. (Matter of Redner v.Faber Son, supra; Matter of Lynch v. City of New York,242 N.Y. 115.) Danger of attack by a lunatic upon the public streets is unusual but, to the extent that such a danger exists, few are free from it. If the work involves exposure to this peril, if the workman is in the place of danger by reason of his employment, the injury arises *Page 104 out of the employment. (Matter of Katz v. Kadans Co.,supra.) Every one seeking shelter under a tree during a thunder storm is in peril of death by lightning. When a workman, employed as a road builder, finds such shelter and his death results from a stroke of lightning, it arises out of his employment. (Matterof Madura v. City of New York, 238 N.Y. 214.) This cause of an injury growing out of the employment must be immediate and proximate like poison, drowning, a blow or a fall resulting in some injury, or a similar force of exterior origin. It must, of course, bear a reasonable relation to the employment. An illness growing out of conditions foreign to the employment and creating no injury is not compensable. An illustration is found in Matterof Hansen v. Turner Construction Co. (224 N.Y. 331) where death was due solely to apoplexy without evidence of a fracture, a concussion or other injury. Given the injury, however, all remote conditions or events which have put in operation the proximate cause of actual injury may be disregarded. When a workman, seized with an attack of apoplexy, falls from a scaffold and fractures his skull (Matter of Barath v. Arnold PaintCo., 238 N.Y. 625) or when another, in a fainting fit, falls from a wagon seat and sustains an injury of the same character (Matter of Mausert v. Albany Builders' Supply Co., supra), the illness, which preceded the injury and constituted the proximate cause of the fall but only the remote cause of the injury, may be ignored. One afflicted by disease is not penalized by the statute. Any healthy man who, by accident and through sheer stupidity and clumsiness not due solely to intoxication, sustains an injury in the course of and arising out of his employment is entitled to compensation. An employee, whose wage consists of car fares and the price of a drink, falls down stairs. For the fatal injury resulting from this usual accident, common to all who neglect observance of elementary caution, the workman's widow was repaid. (Matter of Greib v. *Page 105 Hammerle, 222 N.Y. 382.) A laborer, employed by a railroad company, hurries across a platform which is in perfect order, falls and hurts his knee. The House of Lords, rejecting the suggestion that the platform was slippery, held that the widow was entitled to recover on the principle that the injury arose out of the employment. (Upton v. Great Central Ry. Co., [1924] App. Cas. 302.)
In one jurisdiction the opposite view was taken on a single occasion. In Rodger v. School Board of Paisley (supra), decided in 1912, the Court of Session in Scotland upheld the doctrine contrary to the one since adopted. Six years later it was cited as an authority by the employer but it was so distinguished by the court as to be substantially overruled inWright Greig v. McKendry (11 B.W.C.C. 402, 417). The principle of the McKendry case, to which reference is made in our opinion in the Mausert case, cannot be distinguished from that now before us. The facts are nearly identical. There, as here, the workman was seized with a fit, fell on a concrete floor and fractured his skull. A minute difference in the facts may be perceived in the cause of the fall, one being due to a uraemic fit, the other to epilepsy, and in the cause of the fractured skull, one being a concrete floor and the other a concrete walk. The court held that death was caused by accident arising out of his employment because, as stated by one of the judges, it was "due to a condition of the particular place where his employment required him to be at the time." Two of the judges referred toRodger's case in such terms as to intimate, without actually asserting, that it had been overruled by Thom v. Sinclair (supra). A fourth member of the court observed in respect toRodger's case: "Unfortunately this case was not referred to inThom or Simpson v. Sinclair, although Lord KINNEAR was a party to both judgments." Since the decision in Wright Greig v. McKendry, the Rodger case has lost all force *Page 106 as an authority. The principle of the McKendry case was approved by the House of Lords in Upton v. Great Central Ry.Co. (supra), the decision in which was rendered in 1923. Counsel for the respondent there cited Rodger v. School Boardof Paisley in support of his contention that the injury did not arise out of the employment but Viscount HALDANE expressed his opinion to be that the injury so arises when "there has been injury by accident arising out of what the workman had to do,merely because of the conditions of his employment, as distinguished from being directly physically caused by it." He referred to the change of judicial attitude as displayed by the authorities subsequent to the year 1917 among which he mentionedThom v. Sinclair ([1917] App. Cas. 127), Stewart Son v.Longhurst ([1917] App. Cas. 249) and Davidson Co. v.M'Robb ([1918] App. Cas. 304) and he added: "I think that the interpretation which I have placed on the language of the statute in reference to the kind of causal relation required, whether or not it is wholly consistent with some earlier interpretationshere and in Scotland, is at least in harmony with the views authoritatively expressed in this House in the decisions I have quoted and in others which followed them later." Lord ATKINSON in a concurring opinion approvingly commented on Frazer v.Riddell Co. ([1913] 7 B.W.C.C. 841) where an engine driver's fall from his engine was due to intoxication and stated that this fact did not preclude compensation to his widow, intoxication, under the English statute, not being in itself a defense in fatal accidents. He made reference also to Wright Greig v.McKendry and stated that the concrete floor upon which the workman fell in a fit and fractured his skull was not found to be dangerous on which to walk.
Therefore, it follows, from the decisions of our own court as well as the later English and Scottish decisions, that an injury received in the course of employment does *Page 107 not cease to be one arising out of the employment merely because some infirmity due to disease has originally set in action the final and proximate cause of the injury. The principle of theBarath case is not based upon the fact that the workman fell from a scaffold nor does the doctrine of the Mausert case depend upon the element of a fall from a wagon seat. I can find in the Mausert opinion no reference to compensability or lack of it, if the injured workman had been "walking the streets." The theory of both cases is that, in spite of the fact that an illness of some nature set in motion and exclusively induced the fall, the workman received an injury which was due to the place where his duty of employment required his presence. The distance which the body of the injured workmen descends until it comes in contact with the substance which causes injury is entitled to no consideration. One may fall from a considerable height upon soft ground and sustain no injury. Another may fall only the length of his body upon a rock and receive a mortal wound. A hole constitutes no greater hazard than a concrete floor or a railroad platform. What distinction in principle can be drawn between a concrete floor and a concrete walk? The question always is: Did the workman's employment require him to be in the place, whether a floor or a walk or other structure, which caused his injury? A weak ankle is not regarded by the courts of this State or of England as an asset for the recovery of compensation superior to a weak heart. A man carries with him all his disabilities, either those of age or of some other nature, and the fact that he has them does not destroy his right to recovery. (Wicks v. Dowell Co., Ltd., [1905] 2 K.B. 225, 231.)
I vote to affirm the order of the Appellate Division.
POUND, LEHMAN, KELLOGG and HUBBS, JJ., concur with CRANE, J.; O'BRIEN, J., dissents in opinion in which CARDOZO, Ch. J., concurs.
Order reversed, etc. *Page 108