Malone v. Detroit United Railway

1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — “Out of” Employment. To entitle a claimant to compensation under the workmen’s compensation law, it must be shown that the causative danger was peculiar to the work, and not common to the neighborhood; that it was incidental to the character of the business, and not independent of the relation of master and servant; that it need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. 2. Same. Testimony by claimant, an employee of a street railway company, a common laborer, a member of the night gang engaged in its track laying department, that, while sitting on the curb during a temporary delay, waiting for the work to begin again, he was injured by a passing delivery wagon striking the boom of a concrete breaker, throwing it over so that he “got caught,” breaking his leg, held, sufficient to support a finding that the injury arose out of his employment. See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80. 3. Same — Finding of Fact — Conclusiveness. Although claimant’s testimony was unsupported, and was contradicted by three disinterested witnesses, the industrial accident board, under the statute, are the final arbiters of questions of fact, and a finding by them in accordance with claimant’s contention is sufficient to support an award.

Certiorari to Industrial Accident Board. Mike Malone presented his claim for compensation against the Detroit United Railway for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari. Certiorari to the industrial accident board. Claimant, a common laborer 34 years of age, was an employee of the respondent, the Detroit United Railway, in its track laying department. At the time of the injury respondent was engaged in preparing the way for a new track on Milwaukee ave. east, in the city of Detroit. The street being paved, respondent employed a heavy machine known as a concrete crusher with which to break up the concrete under the pavement. This machine moved forward upon a temporary track. Having gone forward a short distance, the laborers, of whom claimant was one, would pick up the rails in the rear of the machine and place them in front of it so that the machine could again go forward. Claimant was a member of the night gang and reported for duty at 6 o’clock in the evening. He worked about half an hour, at which time the track in front of the machine was prepared for a forward movement. The operator of the machine did not appear, however, and claimant and his associates walked, stood, or sat about in the vicinity until nearly 8:30 in the evening. At about that time two of the companions of claimant left him to get some tobacco at a nearby store. While they were absent claimant either sat down upon the curb immediately opposite the concrete breaker, which was in the middle of the street, or lay down upon the space between the curb and the sidewalk, which was about three feet wide. Claimant testified that while he was sitting upon the curb, smoking, a delivery wagon approached; that he shouted three times to the driver to stop but that his warning was disregarded; that in coming on the wagon bumped against the boom of the concrete breaker and towards him; that he “lifted up one leg and the other one naturally got caught.” Plaintiff’s version of the accident was flatly contradicted by three witnesses, two of whom were sitting upon a porch about 20 feet or 30 feet distant from the scene of the accident. They testified that claimant was stretched at full length upon his' face on the ground between the curb and the sidewalk, apparently asleep and that he gave no warning to the approaching driver and made no sound until after his injury. The driver of the wagon was sworn and corroborated this testimony as to the warning. As a result of the accident claimant suffered a Pott’s fracture of the left leg. A committee on arbitration awarded compensation, which award was affirmed by the full board. The decision of the board is reviewed in this court upon one point only, viz.: The injury sustained by claimant did not arise out of and in the course of his employment.