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was injured was $12.70; that his compensation rate during total disability was and is $6.35 per week.

"e. That at a time about fourteen (14) months after the man was injured he returned to the employment in which he was injured but only worked a couple of weeks or some such time and that it does not affirmatively appear that he worked steadily during that time, and hence it may be that during all of the time since the man was injured he may be entitled to receive compensation either for total or as for partial disability.

"f. That during all of the time since March 23, 1916, during which the applicant has not been able to earn at all he shall be paid $6.35 per week.

"g. That running an elevator is in the judgment of the board common labor and that during any of the time since the applicant was injured in which the applicant has been able to earn some wages at common labor he is entitled to be paid one-half of the difference between the wages he has been able to earn at common labor and $12.70 per week, his average weekly wages at the time he was injured.

"h. That it appears to the board that the hand of the applicant is in quite bad condition and that it is likely that the applicant will be either totally or partially disabled for some considerable time to come. That during a part of the immediate future he may be totally disabled and during a part of the time he may be partially disabled, and it is impossible for the board to say at present just what the future will develop in his case. That it cannot be said to a certainty that he will be totally disabled nor that he will be only partially disabled, and therefore the order of the board should provide for either condition."

There was evidence supporting the finding that when injured the employment of claimant was that of common laborer. The labor he was performing, shoveling and wheeling a barrow, required the use of both hands. He can and does perform labor which does not require the use of the right hand and arm. It is the contention of claimant that because he cannot do the work he was doing when he was injured his case

is governed by the decisions above referred to, and that he should be allowed compensation as for total disability while the disability continues.

Employing the language of claimant's brief, the contention is:

"Claimant being incapacitated from doing the kind of work, or similar employment, being done when injured, or any part of it, entitles him to what compensation during the disability? We contend full compensation not exceeding 500 weeks."

The award must stand unless, as claimant contends, one who is a common laborer and is disabled while doing some particular labor requiring the use of both of his hands and arms is totally disabled if on account of an injury he cannot perform the same labor or labor which requires the use of both arms and hands but can perform other common labor. We are unable to make the required distinction, being of opinion that the work of one engaged in what is ordinarily described as common labor is an employment within the meaning of the act. The act does not classify persons employed at labor, but it does recognize that there are different kinds of employment. The act was intended to affect and apply to existing conditions, one of which, generally recognized, is that persons are employed as common laborers-that the employment of certain wage earners is, and is known as, common labor. A definition of common labor, exclusive and inclusive, is not easily formulated, but the common understanding is, for the purposes of this decision, illustrated in the testimony of the claimant. Upon direct examination, the questions and answers referred to are:

"Q. What were you doing at the time of the injury in question?

"A. Just common labor.

"Q. Well, go right on and describe what you were doing for the respondent?

"A. Shoveling sand and carrying pots where they melt, the melted steel pots."

Stating that at the instant of his injury he was assisting three others in carrying a tank, he was asked: "Was the carrying of this tank a part of your duties and work at the time?" and he answered, “Yes.” On cross-examination, the following testimony was given: "Q. How long had you been working for the S. Fair & Co., when you got hurt?

"A. For about six weeks.

"Q. In that six weeks what was the nature of your duty?

"A. Just shoveling sand and carrying iron and stuff.

"Q. Shoveling sand and what?

"A. And carrying stuff around, parts, wherever they send us we go."

Claimant's incapacity for work, in the employment in which he was engaged when he was injured, being partial and not total, the compensation to which he is entitled was rightly computed accordingly. A criticism of the order and award of the board which might have been but is not made is that it specifies the wages he has been able to earn since the injury, and not the average weekly wages he is able to earn, as one factor in the computation. The award in this respect should be amended accordingly. Neither party will recover costs.

BIRD, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concuri ed.

GRANADER v. DETROIT UNITED RAILWAY.

1. STREET RAILWAYS-PERSONAL INJURIES-CROSSING ACCIDENT

NEGLIGENCE-QUESTION FOR JURY.

In an action against a street railway company for personal injuries caused by a collision between a street car and a motor truck, testimony that, although when the car was more than 100 feet away it became evident that the truck was attempting to cross the track in front of the car, but the motorman made no effort to slacken the speed of the car until within a few feet of the truck, held, to present a question for the jury as to whether the motorman used such care as he should, under all the circumstances.1

2. SAME PLEADING ORDINANCES

TIONS.

EVIDENCE-TRIAL INSTRUC

In such action, a city ordinance regulating the speed of street cars that was neither pleaded nor received in evidence was unavailable, and an instruction as to the speed of street cars as fixed in the ordinance was reversible error.

Error to Wayne; Hosmer, J. Submitted January 15, 1919. (Docket No. 41.) Decided April 3, 1919.

Rehearing denied June 13, 1919.

Case by Jacob Granader, an infant, by his next friend, against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error. Reversed.

Corliss, Leete & Moody and Benjamin S. Pagel, for appellant.

Baubie & Baubie, for appellee.

BIRD, C. J. Plaintiff, a boy 17 years of age, was riding on the platform of a motor truck owned by Morgan & Wright, and operated by one of its drivers, in the city of Detroit. The motor truck was going south on Brush street. When it reached the north

'On right of motorman to assume that no one will attempt to cross track so close in front of car as to render a collision probable, see note in 5 L. R. A. (N. S.) 1059.

curb line of Warren avenue the driver observed a street car about 250 feet away approaching from the west. He kept on his course and concluded he could cross in advance of the car. When he was entering on the track the car was about 125 feet distant. The motor truck was 40 feet long and before he could clear the track the street car struck the rear end of it and threw plaintiff therefrom to the ground and seriously injured his shoulder. The negligence charged in the declaration was excessive speed of the car; the failure to give warning of its approach and the negligent operation of the car. A trial resulted in a judgment for plaintiff of $3,500.

1. Defendant complains of the refusal of the trial court to direct a verdict in its behalf, its contention being that no negligence upon its part was shown. We do not agree with this contention. By the time the truck driver reached the north line of Warren avenue, both he and the motorman were in plain view of each other. Each knew the other was going to cross his pathway. It therefore became the duty of each to use reasonable care to avoid a collision. The testimony left it an open question as to whether the motorman discharged his duty. The testimony shows that the motorman made no effort to slacken the speed of his car until he got within a few feet of the truck, notwithstanding the fact that he was considerably over 100 feet distant when it became obvious that the truck driver was attempting to cross in advance of him. The truck driver was an experienced operator and he appears to have thought from the way traffic ordinarily moves he could clear the track before the street car arrived. The motorman evidently thought so too, and he delayed taking any precaution until it was too late to be effective. The question as to whether the motorman used such care as he should have used, under all the circumstances, was clearly a ques

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