Malone v. Detroit United Railway

202 Mich. 136 | Mich. | 1918

Brooke, J.

(after stating the facts). We have held, Tarpper v. Weston-Mott Co,, 200 Mich. 275, that to entitle a claimant to compensation for an injury arising “out of” his employment it must be shown that:

“The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. 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.”

Applying this rule to the facts as testified to by claimant, it is the conclusion of my Brethren (with which I with much difficulty agree) that it can be said that the claimant’s injury arose “out of” his employment.

Disposing of the question of fact, the board said:

“The applicant, it seems, was sitting on the curb and thought that the wagon could drive through between him and the machine without striking him. Possibly he ought to have gotten up and gotten out of the way. However, he was there on duty, and was only sitting still at the time owing to the exigencies of the work. He had a right to sit still until some other operative moved the machine so he could work. He had not gone away from the point of his labor. The board does not think he was asleep, lying with his feet in the street.” '

Counsel for appellant asserts that this finding is not a finding of fact concluding the question, but even if true does not warrant a recovery by claimant under the circumstances. The finding, if warranted, was certainly sufficient to support the award, and, while three disinterested witnesses contradict the claimant, and his evidence was unsupported by any other testimony in the record, we cannot disturb the award because the great weight of the evidence is against the finding of fact upon which it is based. Argument upon this phase of a case 'must always be addressed to the board themselves, who under the statute are made final arbiters thereof. Some recent cases involving the question here involved follow: Purdy v. City of Sault Ste. Marie, 188 Mich. 573; Papinaw v. Railway Co., 189 Mich. 441; Kunze v. Detroit Shade Tree Co., 192 Mich. 435; Haller v. City of Lansing, 195 Mich. 753; and Porritt v. Railway, 199 Mich. 200.

The award is affirmed.

Ostrander, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Bird, J., did not sit.