Malone v. Detroit United Ry.

• Decision Date: 03 June 1918
• Docket Number: No. 112.,112.
• Citation: 167 N.W. 996,202 Mich. 136
• Parties: MALONE v. DETROIT UNITED RY.
• Court: Michigan Supreme Court

202 Mich. 136
167 N.W. 996

MALONE
v.
DETROIT UNITED RY.

No. 112.

Supreme Court of Michigan.

June 3, 1918.

Certiorari to Industrial Accident Board.

Proceeding for compensation for personal injury under the Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10) by Mike Malone against the Detroit United Railway. From a decision of the Industrial Accident Board, affirming an award of compensation by a committee on arbitration, the defendant brings certiorari. Award affirmed.

Certiorari to the Industrial Accident Board. Claimant, a common laborer 34 years of age, was an employé of the respondent, the Detroit United Railway, in its tracklaying department. At the time of the injury respondent was engaged in preparing the way for a new track on Milwaukee Avenue 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 3 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...