86 HARVARD LAW REVIEW bear its casualties. See Bohlen, "Drafting of Workmen's Compensation Acts," 25 Harv. L. Rev. 328, 329. In the setting of the Massachusetts Act, however, the decision seems sound. Master and Servant — Workmen's Compensation Acts — Common Risks. — An employee working in a trunk factory was directed to go to the factory maintained by the same company on the opposite side of the street to letter a trunk. While returning, after he had completed his task, he sUpped on the ice in the street and sustained fatal injuries. Held, that the accident arose out of his employment. Redner v. H. C. Faber 6* Son Co., 119 N. E. 842 (N. Y.). The greatest difficulty in determining whether an accident arises out of an emplojanent is experienced in cases where the workman's injuries result from risks run by every one, yet in contact with which he is brought in the course of his employment. Most courts have applied the test that there must exist a frequency or peculiarity of subjection to the common risk to make the acci- dent one arising out of the employment. Andrew v. Failsworih Industrial Society, [1904] 2 K. B. 32; Pierce v. Provident Clothing 6* Supply Co., Ltd., [1911] I K. B. 997; Fensler v. Associated Supply Co., i Cal. I. A. C. Dec. 447. But what frequency or peculiarity is required has never been definitely es- tablished, and it is precisely this uncertainty that has caused such a hopeless conflict among the decisions involving the question. Late English and Ameri- can decisions, however, have discarded this test and have adopted one more determinate in character. It suffices that the risk resulting in the accident was one which the workman incurred through his employment, and the fact that the risk was a common one also, avails nothing. Dennis v. White b" Co., [1917] A. C. 479; Belt V. Hughes, [1914] 52 Scot. L. Rep. 93; Milwaukee v. Althof, 156 Wis. 68, 145 N. W. 238. This reasoning has been applied in the principal case. Since this criterion dispenses with the indefinite elements of "frequency" and "peculiarity," it is more certain and wiU cause much less confusion in the cases. See also 25 Harv. L. Rev. 530-37. Master and Servant — Workmen's Compensation Acts — Statute Providing either Compensation or Damages: when Recovery against Employer is not a Bar to Recovery against Negligent Third Party. — Under Workmen's Compensation Act of Rhode Island an employee negli- gently injured by a third party may take action against him or the employer, but shall not recover both damages and compensation. Laws, 1912, c. 831, art. 3, 21. A written agreement for compensation was, in accordance with the act, filed and approved in the Superior Court. The employee now sues the tortfeasor in accordance with an agreement with his employer providing that the employee should, out of the money thus recovered, repay the em- ployer the sums advanced for compensation. Did receipt of compensation under these circumstances bar recovery against the tortfeasor? Held, it did not. Mingo v. Rhode Island Co., 103 Atl. 965 (R. I.). The case has apparently no American precedents. Under the English Act of 1897, repealed by that of 1906, an employee might at his option proceed against either employer or tortfeasor, but not both. 60 & 61 Vict. c. 37. Under this act an agreement to take compensation "without prejudice" did not bar action against the tortfeasor. Oliver v. Nautilus Steam Shipping Co., [1903] 2 K. B. 639, 19 T. L. R. 607. Under the English Act of 1906 an employee may " take proceeding" against both parties, but is entitled to but one recovery. 6 Edw. VII. c. 58. Under this act an agreement to refund compensation on subsequent recovery from the tortfeasor was hot such "recovery" as to bar action. Wright v. Lindsay and Others, [1912] S. C. 189, 49 Scot. L. R. 210. The Rhode Island statute has similar provision to the later English act, and ex-
