second instruction, in which latter event the jury will find a verdict for the defendant. Unless the jury shall believe as in this, the first instruction, the jury will find a verdict for the defendant. "(2) If the jury shall believe from the evidence that at the time and place of the accident mentioned and described in the evidence, the plaintiff failed to exercise ordinary care to avoid coming in contact with the car, or being struck by it, and that but for such failure contributing thereto the accident would not have happened, and the plaintiff would not have been injured, the jury will find a verdict for the defendant." The trial court refused to give the following instructions, which were offered by the defendant: "(A) The court instructs the jury that, if they believe from the evidence that the death of the plaintiff was not caused by his being struck or injured by defendant's car at the time complained of herein, but was caused at some other time, or by some other cause, you will not find for the plaintiff on account of any injury or injuries resulting in plaintiff's death, if such injury or injuries did result in plaintiff's death, caused at some other time or by some other cause or means. "(B) The court instructs the jury that the defendant's motorman was under no obligation to stop his car or to check its speed, if it was not going at an unreasonable speed, as long as the truck or wagon mentioned in the proof, and which was being pulled by plaintiff was in a place of safety from the approaching car, and the said motorman had the right to presume that the said truck or wagon would remain in a place of safety until by its movement some indication was given that it would leave its place of safety and get into a place of danger from the approaching car. And if the jury believe from the evidence that the said car was not being operated at an unreasonable rate of speed at the said time and place, and that the defendant's motorman used ordinary care to check the car and prevent the collision as soon as he discovered, or could by the exercise of ordinary care have discovered, that the said truck or wagon, which was pulled by plaintiff, was in danger from the approaching car, then the law is for the defendant, and the jury should so find." Complaint is made of instruction No. 1, because it defined at great length the numerous duties of the motorman in charge of the defendant's car, but limited the duty of the decedent to the exercise of ordinary care to avoid being struck by defendant's car. In discussing the reciprocal duties of a street car company, and a traveler upon a public street, in the recent case of Smith's Administrator v. Louisville Railway Co., 174 Ky. 784, 192 S. W. 875, we said: "While the right of a street railway company to the use of that part of the public street or highway occupied by its tracks is paramount to that of the public, because of the fact that its cars run on a fixed track, yet, subject to this qualification, the rights of the company and of the traveler are equal and reciprocal; the traveler having as much right, if in the exercise of ordinary care, to go across or along such part of the street, when not occupied by cars, as across or along any other part of the street, and is not a trespasser in doing so. Out of this equality of right arise reciprocal obligations; it being the duty of the company, on the one hand, to keep a lookout, to have the car under reasonable control, to give timely warning of its approach, and to use ordinary care to avoid injuring persons on or so near to the track as to be in danger, and the duty of the traveler, on the other, to exercise ordinary care to learn of the approach of the car and to keep out of its way." It is clear that instruction No. 1 is in substantial compliance with the rule of the above opinion; the only difference being that instruction No. 1 uses the words "to exercise ordinary care to avoid being struck by cars," while the language employed in the above opinion is "to exercise ordinary care to learn of the approach of the car and to keep out of its way." Manifestly this difference is too slight to authorize a reversal. It was not error to refuse to give instruction A, offered by the defendant, for it was in effect only the converse of instruction No. 1. Nor did the court err in refusing to give instruction B, offered by the defendant. That instruction not only overlooked the duty of the motorman to give timely warning of the approach of the car, but authorized the motorman without giving such warning to presume that the truck would remain in a place of safety, until by its movement some indication was given that it would leave its place of safety and get in a place of danger from the approaching car. As we have before seen, the traveler in charge of a vehicle has the right, to use any portion of the public street, and a motorman should always operate his car with this right in view. It therefore follows that, where a car is approaching in the rear of a vehicle near the tracks, the motorman cannot assume that the vehicle will not get on the tracks, unless he has taken the necessary steps to apprise the person in charge of the vehicle of the approach of the car. Judgment affirmed. JAMESON v. WALTER S. NEWHALL CO. [Supreme Court of Michigan, March 27, 1918.] 200 Mich. 514, 166 N. W. 834. Workmen's compensation-Award-Permanent disability. Under Comp. Laws 1915, § 5441, providing that the weekly loss in wages of an injured employee under the Workmen's Compensation Act shall consist of such percentage of the average weekly earnings of the employee as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury, a claimant is permanently disabled where he is unable to engage in the specific and identical work that he was engaged in at the time of the injury. Certiorari to Industrial Accident Board from an order awarding compensation for permanent disability. Affirmed. For appellant-Guy W. Moore, and Hal P. Wilson. For appellee-Person, Thomas, Shields & Silsbee. KUHN, J. On April 17, 1916, the applicant, Bert (or Berton) Jameson, was in the employ of the respondent Walter S. Newhall Company compensation acts and considerations in determining and making same, see 18 N. C. C. A. 447-471, ante; concurrent compensation for concurrent disability from separate causes, see 18 N. C. C. A. 69-75, ante; disfigurement as ground for compensation under workmen's compensation acts, see 16 N. C. C. A. 481-484; employment at same or higher wages after injury as affecting right of injured employee to award for partial incapacity under workmen's compensation acts, see 15 N. C. C. A. 1067-1072; distinction between temporary and permanent disability under compensation acts, see 11 N. C. C. A. 426-437; failing physical powers as affecting compensation under compensation acts, see 11 N. C. C. A. 54-58; compensation for disabilities not specifically scheduled in workmen's compensation acts, see 9 N. C. C. A. 342-349; whether cessation of work in which partially incapacitated workman engaged constitutes to as foreman of certain pile-driving operations in connection with the construction of an ore dock at Zug Island, and on the morning of that day, while he was engaged in superintending the moving of a pile driver, the pile hammer was lowered in such a manner that it struck one end of a plank and hurled the other end violently against the right side of his face. The impact rendered him unconscious, fractured the right side of his jaw, destroyed nearly all his teeth, cut a large gash in his right cheek, severed certain facial nerves resulting in paralysis of a portion of the right side of his face and caused a partial ankylosis of the jaw, leaving him with impaired sight and hearing, subject to dizzy spells, and permanently weakened physically. He can now open his jaw only about three-fourths of an inch and it is impossible, for this reason, to fit him with artificial teeth. Prior to the accident he was a strong, vigorous man, capable of performing heavy physical labor and able to engage in occupations of a dangerous character. He had expert knowledge of the construction and operation of derricks and other machinery used in construction work and a long experience in that line of employment. It is admitted that pile driving requires physical labor of a very heavy kind, such as the handling of immense timbers, etc., and is moreover a dangerous compensation up to October 28th, and the employee then returned to work. Subsequently, the board made an award based on a finding that the employee's hand had been rendered permanently incapable of use. The finding was to the effect that as the employee was lacking in ability to understand orders and had little knowledge of English, and his right hand having been rendered permanently incapable of use, he was in fact totally incapacitated to earn any wages. It appeared that the injury was wholly to his right hand; that his middle finger was amputated and the middle and ring fingers impaired; that the thumb was normal; and that the little finger was in good shape except from disuse. He return ed to work on October 28th, and continued until a few days before the work closed in the latter part of the following January. His work during this period was light. After leaving the employer's service, it did not appear occupation, not only because of the clumsy and ponderous apparatus used therein, but also because it involves the climbing to, and working at, considerable heights, requiring a clear head and steady nerves. The testimony showed that a capable foreman in this line of work should, and that Mr. Jameson did, take an active part in the heavy lifting and in the dangerous part of the work; that he usually set the timbers himself, had tackles to handle, and personally climbed to the top of the pile driver when necessary to adjust the apparatus there. His work included the repairing of the pile driver and other machinery. Since the accident, applicant has been unable to resume this line of work, partly because he is greatly weakened by reason of insufficient nourishment, his injury having made it impossible for him to masticate food, and partly because he is now subject to dizzy spells when he attempts to climb to any height and whenever he stoops over. The superintendent of the Newhall Company testified: "I would hesitate to put him in charge of a pile driver crew, or in charge of a crew doing what he was doing the day he was hurt. I would hesitate for two reasons, and the first is physical inability to handle it properly, and the fact is that most always when a man goes through experiences of that kind, he loses his nerve for work of a similar character. * * * The machine he was handling was about 65 feet high, and weighed 9,000 pounds, and it requires a man of full judgment and more or less daring to handle equipment of that sort successfully." that he sought employment elsewhere. * * this record does not disclose that any III. Five per cent vision in one eye left. In proceedings under the Minnesota Workmen's Compensation Act it appeared that claimant, a sewer mason, was accidentally injured, whereby he lost the sight of his right eye. After the accident he had only 5 per cent of normal vision, with the aid of glasses, in the left eye. The evidence tended to show that the sight in both eyes |