holding that a lightning accident "arose out of" employment because the "employment required [the employee] to be in a position where the lightning struck him"
How later courts described this case
- holding that a lightning accident "arose out of" employment because the "employment required [the employee] to be in a position where the lightning struck him"
- affirming an award of compensation for an employee whose employment obligations required him to be at the particular place where he was struck by lightning
- first application of the positional-risk doctrine in Colorado
- defining positional risk doctrine
Written by the judges who cited it.
The opinion
*235 Mr. Chief Justice Burke
specially concurring.
The statute here under consideration provides: ‘ ‘ The right to the compensation provided for in this act * * # shall obtain in all cases *f * * where the injury or death is proximately caused by accident arising out of and in the course of his employment. * * *” Sec. 4389 p. 1235, C. L. 1921 (L. 1919, p. 705, § 15).
Whether a given accident arises “in the course of” an employment is usually answered with ease; whether it arises “out of” the employment is often, as here, answered with difficulty.
Some general rule of interpretation, furnishing a reasonable guide to those whose rights and duties are presumably fixed by this act, should be announced. No such rule can be formulated unless, in cases of the general character here under consideration, we read out of the statute the words “out of and” or read into it the words, “Accidents due to an act of Grod, or of the public enemy, or of lawlessness not committed against the employee as such or against the business of the employer, shall not be deemed as arising ‘out of’ the employment.” As the first alternative violates the well established rule that every part of a statute must, if possible, be given effect, my opinion has always been that we should have resorted to the second and were this a matter of first impression such would now be my conclusion. However, so far have we heretofore gone in applying what I believe was, in the beginning, an erroneous rule, that our course cannot now be altered without a clear violation of the rule of stare decisis. Such, I am convinced, would be the effect of a reversal in the instant case.
If this lightning stroke was an accident “arising out of” the employment every accident due to lightning so arises if “in the course of” the-employment, and evidence as to the cause of the stroke is irrelevant. That conclusion can only be escaped by holding that no accident by lightning shall be deemed to arise out of the *236 employment unless the injured employee, in the course of his employment, took to or had at the place of the accident the thing which there caused the stroke. Such holding would, however, involve a reversal of former decisions of this court. An affirmance of this judgment establishes the rule that when one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his employment, that accident is one “arising out of” the employment of the person so injured. To that rule I think we are committed and the remedy, if any, to be applied, rests with the legislature. Hence the judgment herein must stand.
Mr. Justice Whitford, Mr. Justice Sheafor and Mr. Justice Campbell concur in the foregoing.