218 Mich. 5 | Mich. | 1922
The plaintiff, a man 56 years old, was, on October 24, 1918, driving a horse and wagon to the north on Fifteenth street in the city of Detroit. He was in the employ of Lowrie & Robinson, lumber dealers. He was familiar with the surroundings. Fifteenth street intersects Warren avenue. This avenue has a double line of street car tracks, operated by the defendant. Cars on the north side travel westerly, and those on the south side easterly. Defendant’s Warren car house is three blocks to the west. Defendant has air stations on both sides of the avenue between Fourteenth and Fifteenth streets. Plaintiff approached the intersection about 5 o’clock in the afternoon. The cars leave defendant’s car house on the east-bound track very frequently at this hour. They stop to take air before proceeding on their trip. As plaintiff approached the crossing, he stopped and waited for three east-bound cars to pass and also a truck being driven in the same direction. The last of the three cars stopped with its rear end slightly protruding into the traveled portion of Fifteenth street, which was 26 feet in width at this point. Plaintiff’s view to the east was entirely obstructed by this car. After waiting, as he claims, for five or six minutes, he testified that he looked along the trolley wire, which he could see over the standing car, and also through the glass on it, and could see no signs
Plaintiff was taken to a hospital and the bill for hospital and doctor’s services, amounting to $130, was paid by the insurance company which had furnished indemnity insurance to plaintiff’s employers. Plaintiff claims he was to return this money in case he recovered damages from the defendant. When the plaintiff had rested, and also at the conclusion of the proofs, defendant’s counsel moved for a directed verdict. The decision on these motions was reserved under the Empson act (3 Comp. Laws 1915, § 14568), and the case submitted to the jury, who rendered a verdict in plaintiff’s favor for $5,840. Defendant’s motion for a judgment non obstante veredicto was overruled, as was also its motion for a new trial. The assignments of error will be considered in the order discussed by defendant’s counsel in their brief.
The decisions of this court relied on by defendant (Doty v. Railway Co., 129 Mich. 464; Clark v. Railway, 168 Mich. 457; Davis v. Railway Co., 191 Mich. 131; Blatnikof v. Railway, 202 Mich. 69) are clearly distinguishable. These were all cases in which a passenger, who had alighted from a street car, passed onto the second track without looking for the approach of a car thereon.
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”
Section 4 of part. 2 (2 Comp. Laws 1915, § 5434) provides:
'“During the first three weeks after the injury the employer shall furnish, or cause to be furnished, reasonable medical and hospital services and medicines when they are needed.”
Defendant insists that the plaintiff by permitting the insurance compaify to pay his hospital and doctor’s bills exercised the option given him by the act to proceed thereunder against his employer for compensation. He made no claim for compensation under the act. There was clearly no election on his part to hold his employers liable. As was said in Brabon v. Light & Power Co., 201 Mich. 697, 706:
“To proceed against the employer is to employ the procedure, the method, pointed out in the statute.”
The judgment is affirmed.