Donley v. D. S. L. R. R. Co.

THIS is an action for damages for personal injuries resulting, as it is alleged, from a collision of plaintiff's automobile with a railway train owned and operated by the defendant company. Answering, the company by its fourth defense alleged that plaintiff, under pertinent *Page 359 provisions of the Workmen's Compensation Act, filed with the Industrial Commission a written election to avail himself of the benefits of said act, and that thereby, "he was forever barred from asserting his alleged cause of action against this defendant." Plaintiff interposed a general demurrer to this defense. Counsel for the respective parties in their briefs suggest that Wilson v. Smith, of earlier docketing in our court, presented the point here involved, and that our determination thereof would control in this proceeding. That case has now been decided (Wilson v. Smith,110 Colo. 68, 130 P.2d 1053), and on authority of the opinion therein we hold that plaintiff's demurrer in the instant case, which was overruled below, should have been sustained. That the trial court may make an appropriate order in the premises, the judgment is reversed.