De Mann v. Hydraulic Engineering Co.

Person, J. (after stating the facts). It is true that the burden is upon the claimant to show that the de [597] ceased met his death through a personal injury arising out of and in the course of his employment. And it is equally true that this burden is not sustained if an inference favorable to the applicant can be arrived at only by a guess. But, as was said by this court in Parker v. Union Station Ass’n, 155 Mich. 72 (118 N. W. 733): “While it is true that proof must establish a probability, and where the testimony can be said to be as consistent with a theory that relieves a defendant from liability for the accident, as it is with one involving his liability, there can be no recovery, we have often held that circumstances shown may justify inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely.” De Mann’s body was found at the foot of the stairway at the time the workmen were leaving the basement to get their clothing and dinner pails from the stage floor. To reach the stage floor those in the basement ordinarily ascended the stairway. Under these circumstances the most reasonable inference is that he fell from the stairway while on his way to the stage. He was in his shirt sleeves; and his coat, vest, and dinner pail were yet on the stage. It was also his duty to look after the tools, and those were kept on the stage. The coroner, a physician, testified: “There were a few little minor abrasions, slight linear wounds on the top of the head, and a contusion on the back of the head on the left side over the occiput. After removing the skull I found a contusion over the temple. The wound on the top of the head was just a slight abrasion, inch or inch and a half long. * * * I should judge that the one on the top would be sufficient to stun him. * * * , He died from the result of the fracture.” It was certainly a reasonable inference that the fracture was caused by a fall from the stairway onto the cement floor, and that the fall came from hitting his [598] head against the crossbeam. No other cause for his death is even suggested, and in the report of the accident by the employer to the Industrial Accident Board it was said: “It is supposed that the injured fell from stairway.” It is undoubtedly true that the deceased was on his way from the basement to the stage for the purpose of getting his clothing, or to look after the tools, or both. There is no other apparent reason for his having been on the stairway. If his purpose was to look after the tools, that was clearly within the line of his employment. If he was after his clothing, that, also, was within the line of his employment. As was said in Hills v. Blair, 182 Mich. 20 (148 N. W. 243): “It is held that the employment is not limited.by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment.” We also agree with the supreme court of New Jersey when it said: “The preparation reasonably necessary for beginning work after the employer’s premises are reached, and for leaving when the work is over, is a part of the employment. A workman is none the less in the course of employment because he is engaged in changing his street clothes for his working clothes, or in changing his working clothes for his street clothes. * * * The employment was not indeed the proximate cause of the accident, but it was a cause in the sense that but for the employment the accident would not have happened. The employment was one of the necessary antecedents to the accident.” Terlecki v. Strauss, 85 N. J. Law, 454 (89 Atl. 1023), 86 N. J. Law, 708 (92 Atl. 1087). And see Sundine’s Case, 218 Mass. 1 (105 N.. E. 433, L. R. A. 1916A, 318). [599] We think that the Industrial Accident Board was warranted in finding that the injury arose out of and in the course of his employment. But the amount of compensation allowed by the Industrial Accident Board seems greater than the evidence justifies. The average annual earnings of the deceased must have been fixed by the board at $600 a year, in order to produce a compensation of $5.77 per week. The evidence in the case does not seem to show such an annual earning. The only testimony was that of a son of the deceased, who said: “My father earned $2 a day at the Hydraulic Engineering Company; had worked for them for two years. He was steadily employed when they had work. I should judge he worked about nine months out of the year. When he wasn’t working for the Hydraulic Company during the real hard months or weeks of the winter, he did not work at any other places. I don’t know how much he laid off last winter. It might have been two months. He worked six days in the week.” From this it appears that the Hydraulic Engineering Company did not afford employment during the entire year, but only for ten months out of the year, at the best. Estimated according to the provisions of the statute as construed in Andrejwski v. Wolverine Coal Co., 182 Mich. 298 (148 N. W. 684), the ánnual earnings of the deceased were not to exceed $520 a year. On this basis the allowance should have been at the rate of $5 per week for the term of 300 weeks. The order of the Industrial Accident Board will therefore be reversed and set aside, and an order entered by the board in accordance with this opinion, but without costs. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. ,