he left his machine, did so "temporarily to go to the toilet, or for some other purpose incidental to his employment," from the single and mere fact that the location of the toilet and water tank was in the direction of the winder machine. Nor could it infer, in the absence of any testimony, that "the belt suddenly left the pulley" and "lashed against Dube as he passed." Sponatski's Case, 220 Mass. 526. Von Ette's Case, 223 Mass. 56. Sanderson's Case, 224 Mass. 558, 561.

There was no evidence whatever to sustain a conclusion that the accident arose out of the employment. The finding of the Industrial Accident Board to that effect was entirely unwarranted by the testimony and also unsupported by any rational inference. Savage's Case, 222 Mass. 205.

The decree is reversed and a new decree is to be entered in favor of the insurer.

PATRICK M. DONAHUE'S CASE.

Suffolk. March 28, 1917.

May 23, 1917.

So ordered.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Workmen's Compensation Act.

Where one employed as a travelling salesman on returning from a business visit was walking along a street that was a mass of ice" on his way to an electric car line to take a car for a town to sell some goods there and slipped upon the ice, sustaining injury, it was held that his injury, although received in the course of his employment, did not arise out of it within the meaning of the workmen's compensation act, being due to a hazard common to persons engaged in any employment who had occasion to travel along the streets.

APPEAL to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board making an award to Patrick M. Donahue who was employed by Thomas J. Flynn and Company, dealers in church goods having their salesrooms in Boston.

The case was heard by Jenney, J. The evidence before the arbitration committee and the Industrial Accident Board is de

scribed in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.

The case was submitted on a brief for the insurer.

E. I. Taylor, for the insurer.

No brief was filed for the employee.

CROSBY, J. The evidence presented to the arbitration committee was in substance as follows: The claimant, who was employed by Thomas J. Flynn and Company in the sale of church goods, on February 21, 1916, left his employer's place of business in Boston and proceeded by train to Lowell and thence by electric cars to the village of Collinsville in Lowell. Upon leaving the electric cars, he went to the house of a clergyman, which was distant about ten minutes' walk from the car line, and after completing his business there left and started to walk back. He had proceeded about thirty-five or forty feet when he slipped on the ice and fell, sustaining a broken ankle. When injured he was walking in the middle of the street, the sidewalk being impassable on account of ice. He was employed principally as a travelling salesman, but worked in the store during the Christmas and Easter seasons. More than half of the time he was outside his employer's store visiting different places throughout New England for the purpose of selling church goods. He travelled by steam railroads, electric cars, and on foot, using cars when available. When he left the house of the clergyman he intended to take a car to Lexington to sell some goods there. The committee found that the employee received an injury in the course of and arising out of his employment.

At the hearing before the Industrial Accident Board, in addition to the evidence before the committee above recited, the employee testified: "I was going to get a car to Lexington when I fell. The street was a mass of ice. I never saw anything like it before or since."

The finding that the injury was received in the course of the employment was warranted. The question remains whether there was any evidence that the injury arose out of the employment. An injury arises out of the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury. An injury cannot

be found to have arisen out of the employment unless the employment was a contributing, proximate cause. If the risk of injury to the employee was one to which he would have been equally exposed apart from his employment, then the injury does not arise out of it. As was said by this court in McNicol's Case, 215 Mass. 497, at 499, "The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant."

The undisputed evidence shows that while the employee was walking along the street in the course of his employment on his way to the electric car line, he slipped upon the ice and received the injury for which he seeks compensation. Manifestly the injury so received did not result in any proper sense from a risk incidental to the employment. It seems plain that the danger of the employee slipping upon the ice in a public street was not peculiar to his work, but was a hazard common to persons engaged in any employment who had occasion to travel along the streets. The risk of slipping upon the icy pavement was common to the public who had occasion to pass over it on foot. It was a danger due to climatic conditions to which persons in that locality, however employed or if not employed at all, were equally exposed. McNicol's Case, 215 Mass. 497. Milliken's Case, 216 Mass. 293. Fumiciello's Case, 219 Mass. 488. Hewitt's Case, 225 Mass. 1. Warner v. Couchman, 4 B. W. C. C. 32. Compare McManaman's Case, 224 Mass. 554. Kitchenham v. Steamship Johannesburg, 4 B. W. C. C. 311. Mitchinson v. Day Brothers, 6 B. W. C. C. 190. Hopkins v. Michigan Sugar Co. 184 Mich. 87. DeVoe v. New York State Railways, 218 N. Y. 318.

As the hazard of slipping on the ice in the street was not a causative danger peculiar to the claimant's employment, the injury received could not properly be found to have arisen out of the employment.

The decree of the Superior Court must be reversed, and a decree entered in favor of the insurer.

So ordered.

WILLIAM H. ROACH & another vs. JOHN J. LANE.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Contract, Construction, Performance and breach, Rescission. Sale. Frauds, Statute of. Sales Act. Evidence, Relevancy, Competency. Agency, Scope of authority. Practice, Civil, Requests and rulings, Judge's charge.

After an interview between a broker, acting for one desiring to sell potatoes, and a prospective buyer, the broker on the seller's behalf sent the following memorandum to the buyer: "We confirm sale to you of following cars of Green Mountains, delivered in Boston at 90c per bu. viz: 4 cars H. H. & A. Roach, Smyrna Mills." Held, that the contract was entire and indivisible.

The memorandum above described satisfied the requirements of the part of the statute of frauds contained in § 4, cl. 1 of the sales act, St. 1908, c. 237. At the trial of an action by the seller against the buyer for a breach of the contract of sale above described, certain letters from the buyer to the broker following the date of the above memorandum and complaining as to non-delivery of the potatoes, in which the buyer wrote that he "purchased from you acting as broker for" the seller, are admissible to prove the authority of the broker to act for the seller.

At the trial of the action above described, it appeared that the bill of lading was attached to a draft upon the buyer and sent through a bank for collection, and that there was no provision in it for an inspection of the goods before payment of the draft and release of the bill of lading. There was evidence tending to show a custom giving to the buyer such a right of inspection in spite of the lack of such a provision in the bill of lading. The defendant contending that he was not allowed such inspection, the plaintiff, subject to an exception by the defendant, was allowed to introduce testimony of an employee of the carrier that there was a practice, in violation of a regulation of the carrier but unquestionably winked at or sanctioned by the carrier's employees, for surreptitious inspection of goods where bills of lading contained no provision allowing it before payment of the draft. Held, that the evidence was admitted properly. If, at the trial of an action by a seller of goods against a buyer for breach of an entire contract of sale at a specified price, it appears that the goods were delivered and in all respects conformed to the requirements of the contract, the plantiff, in order to recover the contract price, does not need to prove that they were accepted by the defendant.

A broker who, acting for a seller, procures a sale of goods, to be delivered in another city upon payment of a draft attached to a bill of lading giving no precedent right of inspection, has no authority, in the absence of evidence showing specific authority so to do, to agree on the seller's behalf that, if,

upon paying the draft and receiving delivery of the goods without inspection, the buyer finds them not in accordance with the contract, the seller will "make it right." Where, under the contract above described, the buyer, upon receiving notice of the

arrival of one car load of the potatoes at the place of delivery, pays the draft and receives the bill of lading relating to that car, unloads and sacks the potatoes and then reships them by the same car to another city, the buyer, even if he discovers that there was a shortage in quantity of the potatoes and if there was a custom that the car loads should be paid for separately, has no right to treat the entire contract as broken by the seller.

Nor under such circumstances can he elect to rescind the contract because he has put it beyond his power to place the seller in statu quo.

Certain rulings asked for by the defendant at the trial of the action above described, relative to a custom as to protection by the seller of the buyer against loss by reason of the goods sold not complying with the requirements of the contract of sale, and the bearing of such custom upon the evidence, were held to have been given in substance in the charge.

CONTRACT for breach of a contract by the defendant to accept and pay for four car loads of potatoes. Writ dated May 19, 1913. In the Superior Court the case was tried before Hitchcock, J. There was evidence that, after an interview between the defendant and Rupert E. McLatchy, a broker, the broker sent to the defendant on May 11, 1907, the following confirmation: "We confirm sale to you of following cars of Green Mountains, delivered in Boston at 90c per bu. viz: 4 cars H. H. & A. Roach, Smyrna Mills."

On the previous day the broker had sent the following letter to the plaintiffs: "We confirm sale for you on four cars of Mountains at Ninety cents ($.90) delivered to Lane & Co., Boston. This is the top price on Mountains up to the present time. It looks as though the market would stay where it is for a few days, as we have been offered quite a few cars at this price from other shippers."

There was evidence that the four car loads of potatoes were shipped from Smyrna Mills, Maine, on May 10, 14, 16 and 18, 1907, respectively, and arrived in Boston on May 17, 20, 23 and 24, respectively. The defendant received notice from the railroad company of their arrival in Boston on May 18, 21, 23 and 24 respectively. On May 28, 1907, the defendant took up and paid the draft attached to the bill of lading for the second car. This car then was unloaded in the afternoon of May 29 and the potatoes in it were sacked and weighed and reshipped in the same car to New York City. There was evidence that, instead of there being five hundred and sixty bushels of potatoes in the car, as called for by the bill of lading, there were but five hundred and