
    Racine Rubber Company, Appellant, vs. Industrial Commission of Wisconsin and another, Respondents.
    
      April 27
    
    May 15, 1917.
    
    
      Workmen's compensation: Injury to employee eating lunch: Service incidental to employment.
    
    An employee who, while eating his lunch in the factory of the employer in accordance with a custom tacitly consented to by the latter, was injured by a pile of crude rubber falling upon him, was at the time “performing service growing out of and incidental to his employment,” within the meaning of sub. (2), sec. 2394 — 3, Stats.
    Appeal from a judgment of the circuit court for Dane county: E. Ray Stevers, Circuit Judge.
    
      Affirmed.
    
    For the appellant there was a brief by Robert R. Freeman, attorney, and Henry J. Bendinger, of counsel, both of Milwaukee, and oral argument by Mr. Bendinger.
    
    For the respondent Industrial Commission there was a brief by the Attorney General and J. E. Messerschmidt, assistant attorney general, and oral argument by Mr. Messerschmidt.
    
   Winslow, C. J.

An employee of a manufacturing concern was seated on a large piece of rubber in a room in the factory at the noon hour eating his lunch, in accordance with a long existing custom known by and tacitly consented to by his employer, when a large pile of crude rubber near him unexpectedly fell on him, breaking his leg. The question presented in this case is whether he was at the time of the accident performing service “growing out of and incidental to his employment” within the meaning of sec. 2394 — 3, Stats, (the Workmen’s Compensation Act).

This question must be answered in the affirmative on the authority of Milwaukee Western F. Co. v. Industrial Comm. 159 Wis. 635, 150 N. W. 998.

By the Court. — Judgment affirmed, with costs against appellant in favor of respondent Macaluso.  