Upon the hearing before the Commissioner two controlling inquires were presented, upon both of which the defendants contended for a
negative reply, to wit: (1) Did the deceased, in succumbing to a heat or sunstroke, suffer a personal injury within the meaning of our Workmen's Compensation Act; and (2) if so, did that injury arise out of his employment?
Before us, defendants' counsel abandoned their contention as to the first of these inquiries, and conceded that under our recent decision in Ahern v. Spier,ante, p. 151, 105 A. 340, the Commissioner was not in error in his conclusion that the deceased received a personal injury within the meaning of the statute.
Their second claim, that the injury did not arise out of his employment, which the court below sustained, was, however, strenuously pursued. The principles applicable in determining whether or not an employee's injury is to be regarded as arising out of his employment, were fully discussed and declared in Larke v.Hancock Mutual Life Ins. Co., 90 Conn. 303,97 A. 320. There, speaking generally, we said (p. 309) that "if the nature of the employment, or the conditions under which it was pursued, or the exposure to injury it entailed, or the doing of something incidental to the employment, was a proximate cause of the injury, it arises out of the employment." Speaking more specifically upon the subject of exposure as a factor in determining whether a resulting injury is to be regarded as arising out of the injured person's employment, we said that the test was to be found in the answer to the inquiry whether or not the employee was injured as a result of a greater exposure to the cause of injury than that to which persons generally in that locality were subjected. p. 309. In Ahern v.Spier, ante, p. 151, 105 A. 340, we reiterated the same principle in substance, when we said that "an employment will be the proximate cause of an injury, when the injury is the natural and necessary incident of the
employment, or when the employment brings with it greater exposure to injurious results than the exposure to which persons generally in that locality are subjected, and such injurious result occurs in the course of that employment."
The Commissioner's finding in the present case is that the deceased's exposure was far greater than that of the community generally, and the risk from heat and the effects of the sun substantially greater than that of the community. Applying the prescribed test to these facts as found, the right of the claimant to receive an award of compensation is established, if the finding is to stand.
The reasons why it should not stand are not apparent to us. Conditions indicative of the deceased's special exposure to risk from the effects of the sun and heat are not, to be sure, as pronounced as they were in the case of the heat victim in Ahern v. Spier, ante, p. 151,105 A. 340. But the subordinate facts found plainly disclose the existence of such conditions. Cunningham, at the time he was overcome, was engaged in shoveling coal, a task alike strenuous and well calculated to aggravate the normal effect of a superheated atmosphere and the rays of a hot sun. He was shoveling coal from a wagon which presumably from its use was blackened with coal dust and, therefore, especially attractive to the sun's rays. As he was shoveling he necessarily disturbed the coal, thus presumably discharging into the air he breathed more or less dust. It is apparent, therefore, that his employment differentiated his exposure to physical harm from that to which the members of the community generally were exposed. The peril which he faced was made up not merely of the conditions produced by the heat and the rays of the sun beating down upon him, but of those conditions plus those other aggravating ones which
attended the work which he was doing in the pursuit of his employment.
There is error, the judgment of the court setting aside the Commissioner's award is set aside and the cause remanded for the rendition of a judgment affirming the award of the Commissioner.
In this opinion the other judges concurred.