201 Mich. 531 | Mich. | 1918
(after stating the facts). In Ayr Steam Shipping Co. v. Lendrum, 6 B. W. C. C. 326, Lord Dundas said:
“I think one may deduce from the decisions (1) that the burden is always upon the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not be by direct but may be by circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts found are such as to entitle him reasonably to infer his conclusion from them.”
This language was quoted with approval by this court in Hills v. Blair, 182 Mich. 20. It was said by Lord Loreburn in S. S. “Swansea Vale” v. Rice, 4 B. W. C. C. 298, a case determined by the House of Lords:
“Now, my Lords, the question here being whether there is any evidence that justifies the County Court Judge in arriving at the conclusion which he did, I must point out that the difference between what is evidence of a fact and what is merely guessing at the fact is one that cannot be defined in any formula that one can invent. What you want is to weigh the probabilities, to see if there be proved facts sufficient to enable you to have some foothold or ground for compar*534 ing and balancing the probabilities, and their respective values, one against the other.”
And it has been frequently held by this court that it was within the province of the board to draw the legitimate inferences from the facts, proven and the circumstances established.
In the case of Van Gorder v. Motorcar Co., 195 Mich. 588, we.had before us the case of a workman predisposed to epilepsy, falling in an epileptic fit from a scaffold, causing his death. We theré held that the accident did not arise out of deceased’s, employment, but was due solely to the epileptic fit and denied compensation. But in that case the board found as a fact, and there was evidence and circumstances to support it, that the fall which deceased suffered was caused by the epileptic fit. Here the board has found, and the circumstances permit the inference, that the fall which plaintiff suffered was caused by tripping on a nail protruding from the floor. While plaintiff testifies that at times he had been dizzy and weak, he also testifies that it was nothing to speak of, but slight, and never sufficient to cause him to lose his balance and fall. His fellow workmen and superiors, in the plant who saw him daily never noticed any appearance of dizziness or fainting, and never saw him fall before. The fact that he did not recall just how the accident happened is in no way extraordinary when we contemplate that in the fall he struck his head with sufficient force to inflict a gash in his scalp. He was over 70 years of age — not as nimble as in his younger years — and had had trouble with his limbs and feet a short time before. We are not persuaded that we should say, as matter of law, that the cause of the accident under the evidence in the case is so conjectural as to require us to set aside the finding and award of the board. See Grove v. Paper Co., 184 Mich. 449; Papinaw v. Railway Co., 189 Mich. 441;
The award will be affirmed.