This is а proceeding under the Workmen’s Compensation Act. On June 28, 1928, about 4 P. M., Merritt Wells was killed by lightning while employed in highway construction work about four miles west of Thomas’ Fork crossing, in Bear Lake cоunty. No testimony was taken before the Industrial Accident Board, which had before it an oral stipulation of facts, entered into by counsel for claimant and for defendants, at the hearing before one member of said board. The stipulation is as follows:
“It is hereby, stipulated and agreed by and between the claimant, through her attorney, Charles E. Harris, and the defendants, through their attorneys, Scatterday & Stone, that Merritt Wells, Deceased, for whose death in this action claim is made, was 39 years of age; at the time of his death he was working on the public highway сommonly known as the ‘Oregon Trail,’ on construction work for C. A. Robinson Construction Company, within Bear Lake County, Idaho, at a point about four miles west of Thomas’ Fork crossing; that his death was caused by a stroke of lightning and that he was instantaneously killed; that at the time of the said death he was engaged in plowing in said construction work and had ahold of the handles of the plough аt the time of said stroke; that he had been directed, together with others in the employ of this company, to do the particular piece of work in which he was engaged at the timе of his death; that these instructions were given to him' by the foreman or man in charge of the said construction company the day said accident happened and that he was engaged in this work under such instructions at the time of his death; that Merritt Wells, Deceased, began working for this company upon this particular piece of construction on May 3, 1928; that while in the pеrformance of the said work as heretofore set forth for the *566 said company said Merritt Wells was killed on the 28th day of June, 1928, by a stroke of lightning; that his death was instantaneous; that Faye Wells wаs the wife of said Merritt Wells and survives him and three minor children, named Doris Wayne Wells, born February 19, 1925, and Lois Elaine Wells, born August 1, 1927, and Merritt Wells, Jr. born the 17th of August, 1928; that said Merritt Wells, Deceased, was the sole support of the said Faye Wells and the said minor children; that they were living together as husband and wife at the time of his death; that the said Merritt Wells wages in such work was $4.00 each eight hours for six days a week, or that his average weekly wages were $24.00 a week; that C. A. Robinson Construction Company was insured with the State Insurance Fund at the time of this accident. It is stipulated and agreed that the funeral expenses were $120.00.”
The board member found that “the personal injury by accident sustained by the deceased” did not arise out of his employment with his employer and denied compensation. On review, the full board found the facts in substantial conformity to the stipulation and ruled “That the death of the deceased, Merritt Wells, was not the result of a personal injury by acсident arising out of his employment, etc.,” again denying compensation. On appeal, the district court made additional findings, based upon the same stipulation of facts, reversed the action of the Industrial Accident Board, and awarded compensation to claimant. From this judgment the defendant contractor and its surety appeal.
Our law provides comрensation for injuries by accident “arising out of and in the course of any employment covered” by it. (O. S., sec. 6217.) The cases, interpreting the same or similar statutes, involving death or injury by lightning, so far аs results indicate, are not in entire harmony. The facts differ in each case, but the general principle runs through them all that in order for the injury to be compensable there must be a сausal connection between the employment and the injury. It must
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be shown that the workman was more exposed to injury by lightning by reason of his employment than were others, not. so engaged, in the same vicinity. That is, if the workman, in pursuit of his duties under his employment, is exposed to a special or peculiar danger from lightning, or the elements — a greater danger than other persons in the same locality are exposed to — and an unexpected death or injury is sustained by lightning, or the elements, such injury constitutes an accident “arising out of and in the course of” the employment. Conversely, if it is not shown that the workman was exposed by reason of his employment to a danger greater than, or not common to, others in that locality, his accidental death or injury by lightning stroke or the elements is not compensable.
(Wiggins v. Industrial Accident Board,
As was said by the Arizona court in Netherton v. Lightning Delivery Co., supra, “Each case must thereforе be considered on its own facts. But the standard for testing those facts is always the same, to-wit, Did the employment increase the danger?”
The only case construing statutes similar to ours, not following the foregoing rule, is that of
Aetna Life Ins. Co.
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v. Industrial Com.,
The stipulation and findings of fact based thereon by the Industrial Accident Board clearly fail to show that the death of Merritt Wells occurred by aсcident arising out of his employment. The burden was upon claimant to show not only that the accident occurred in the course of deceased’s employment but that it arose оut of it; to establish the causal connection between the employment and the accident.
(Hawkins v. Bonner County,
The additional findings made by thе district judge, from the same stipulation of facts, no other evidence of the facts having been presented, were not justified. The stipulation that at the time of his death deceasеd was engaged in plowing “and had ahold of the handles of the plow at the time of said stroke” does not authorize the further finding by the district judge that special hazard resulted because thе plow was constructed of steel or iron and was drawn by horses or tractor; or “That it may be reasonably assumed that deceased was working in damp ground within a few feet of the horsеs, or a tractor, and that by reason of such condition and his position that his accident ‘grew out of and in the course of his employment’ ”; or “That judicial notice is taken that a plоw is constructed more or less of steel and iron, and that in the operation of the same that either horses or a tractor is used, and further that it is generally assumed as a fact that both animals and steel or iron machinery are good conductors of electricity, thus increasing the hazard of the likelihood of lightning being conducted or communicated to a human bеing, who happens to be close by or within a few feet of.said machinery and animals, a hazard which would not be assumed by a person not being in a like position; and hence, as a matter of law, an accident under such circumstances would be one ‘growing out of and in the course of his employment.’ ” As may be readily observed these “findings” by the district judge are not findings of faсt but inferences drawn from the stipulated facts that at the time of the accident deceased was plowing with his hands upon the plow handles. The inference is then drawn, from what had heretofore been inferred, that deceased was killed while working in a place of special
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hazard to lightning; an inference of fact based upon another inference of fact, which is not permissible.
(Swetland v. New World Life Ins. Co.,
Respondent argues that the court would judicially notice the fact that deceased, at the time of the accident, was working in a situation of special hazard and peculiar danger. While it is true that courts take judicial notice of the laws of nature and may resort for aid to appropriate books or documents for reference (C. S., see. 7933;
Petajaniemi v. Washington etc. Co.,
Judgment reversed. Costs to appellants.
Petition for rehearing denied.