Alfred Henry Lionel Leach, C.J.
1. These two appeals can be conveniently dealt with in one judgment. They arise out of proceedings under the Workmen's Compensation Act. On the night of the 21st October, 1940, two workmen named Thandrangi Sanyasi and Kotina Simhachalam respectively were killed within the premises of the Vizagapatam harbour. They were coolies who were employed by the appellant, a contractor of the Port authorities. The Traffic Manager of the Port deposited with the Commissioner for Workmen's Compensation the sum of Rs. 1,100 as the amount payable to the dependents of the deceased workmen under the Act. The appellant had given an indemnity to the Port authorities and consequently the traffic manager applied under Section 12 (2) for an order of indemnification. The Commissioner held that the accident arose out of and in the course of employment and therefore the Port authorities were entitled to be indemnified by the appellant. The appeal is from that order. It is common ground that if the accident arose out of and in the course of employment the order of the Commissioner must stand.
2. The facts are very simple. The appellant employed the two workmen for loading manganese ore into skips at a dump within the harbour premises. The hours of work were from 2 p.m. to 10 p.m. It was usual for the workmen to take refreshment in turns after they had worked for several hours. On the 21st October, 1940, the deceased workmen worked from 2 to 7-30 p.m. when they left the harbour premises in order to drink some coffee. They apparently did not ask for permission to go, but nothing turns on this, because, as we have mentioned, it was usual for the workmen to go away for short periods when convenient. The deceased workmen having partaken of coffee returned to the harbour premises to resume their work. They took a short cut which necessitated their crossing certain railway lines. While they were crossing these lines a railway engine ran into them and both were killed. There is a notice prohibiting persons from crossing the railway lines but the evidence of the foreman of the yard is that it was usual for workmen in the harbour premises to cross the lines in spite of the prohibition. The Commissioner has found that this practice has been ' permitted, connived or winked at ' by the employers of labour or responsible officials of the Port.
3. Now can it be said that the accident which befell these workmen arose ' out of and in the course of their employment '? We think it can. In McCullum v. Northumbrian Shipping Company, Limited (1932) 147 L.T. 361 Lord Macmillan observed that few words in the English language had been subjected to more microscopic judicial analysis than these, and in the effort to expound them many criteria had been proposed and many paraphrases suggested. But it was manifestly impossible to exhaust their content by definition, for the circumstances and incidents of employment were of almost infinite variety. This at least, however, could be said, that the accident in order to give rise to a claim for compensation must have some relation to the workmen's employment and must be due to a risk incidental to that employment as distinguished from a risk to which all members of the public were alike exposed.
4. In leaving their work to take refreshment at 7-30 p.m. these workmen did what they were entitled to do. In fact it would manifestly be impossible for them to do this heavy work from 2 p.m. to 10 p.m. without some break. They left the harbour premises and returned and having entered the premises they sought the nearest way to the place where the manganese ore was being loaded. In crossing the railway lines they were following the usual practice of the workmen engaged in the harbour. The prohibition was not an effective prohibition. The responsible officials of the harbour in fact connived at its being disregarded. In other words, the notice might never have been there. Having entered the harbour premises and having met with an accident in the circumstances which we have related we consider their dependents are entitled to compensation. The risk which they ran was incidental to their employment and arose out of it.
5. The order of the Commissioner must be confirmed and the appeals dismissed with costs in A. A. O. No. 678 of 1941.