Perkins v. . Sprott

ClaResoN, J. N. C. Code, 1931 (Michie), sec. 8081 (i) : “When used in this chapter, unless tfie context otherwise requires: (f) ‘Injury and personal injury’ shall mean only injury by accident arising out of and in tfie course of tfie employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.” In Harden v. Furniture Company, 199 N. C., 733 (735), it is said: “While tfie phrase ‘in tfie course of’ refers to time, place, and circumstance, tfie words ‘out of’ relate to tfie origin or cause of the accident.” Goodwin v. Bright, 202 N. C., 481. In Byrd v. Lumber Co., ante, 253 (255), it is said: “On plaintiff’s appeal from tfie award to tfie Superior Court, only questions of law involved in tfie proceeding and decided by tfie Industrial Commission *464 could be considered. Tbis is also expressly so provided by statute. N. C. Code of 1931, see. 8081 (ppp). Tbe jurisdiction of tbe Superior Court is limited to- a consideration of questions of law only.” In tbe present case all tbe facts are admitted, and tbe full Commission decided as a matter of law tbat plaintiff could not recover. An appeal was taken to tbe Superior Court and tbe ruling on tbis question of law made by tbe Industrial Commission was reversed. Tbe court below bad tbis power, and we tbink tbe decision correct. Tbe testimony of plaintiff, in part, is as follows: “I was employed as a collector and deliveryman. On 27 June, 1933, I was driving my employer’s truck, returning on Highway No. 15, after having made a delivery at Kannapolis, to my employer’s place of business in Concord. As I was passing a group of boys playing baseball on a field near tbe highway a baseball bit and broke tbe windshield of tbe truck. A piece of glass from tbe windshield got in my eye. I did not return to work until 28 September, 1933. . . . Q. What I am getting at is tbis: Did anything bit you in tbe face except tbe glass in your eye? A. Nothing but tbe glass. Tbe ball, to my knowledge, didn’t touch me at all, only possibly fell in my lap. I don’t know where tbe ball was found. Q. Nothing bit you solidly, nothing but tbe glass, a few fragments of glass went in your eye, and that’s all ? A. Yes, sir.” Tbe injury was: (1) By accident. (2) In tbe course of tbe employment and, we tbink, “arising out of.” Tbe injury to tbe plaintiff employee was tbe glass tbat bit him in tbe eye. Tbe baseball did not bit him. In Whitley v. Highway Com., 201 N. C., 539, tbe injury was a stray shot from a hunter’s gun. In Bain v. Travora Mfg. Co., 203 N. C., 466, tbe injury was tbe stray bullet from one shooting at a sparrow. We do not tbink tbat it is necessary from tbe view we take of tbis ease to consider “Street Hazard.” Tbe judgment of tbe court below is Affirmed.