doubt that Mr. Hanna was at work for the defendant company in some capacity-the company claims as a cleaner, which did not call upon him to use any buzz saw. His widow claims he was at work as a carpenter. It was while he was engaged at work for the company, and because of that employment, that he was injured; and, if as a result of the injury he died, it is difficult to escape the conclusion that liability followed. 2. We shall not attempt to follow the discussion of each subdivision under this head, but will attempt to state the claims of the respective parties, what is shown by the record, and our conclusions.

Mr. Hanna, at the time of the accident, had been employed by the defendant six months or more. He was 53 years of age. It is the claim of his widow that his work called upon him to push boards against a circular saw for the purpose of sawing them, and that one of them was thrown against him with great violence, hurting his hand and chest, and that as a result of his injuries his death followed.

It is the claim of the defendant that Mr. Hanna was employed as a cleaner, and that no part of his duty required him to use the buzz saw, and that if he did so that he was violating a positive order, and that he was guilty of intentional and willful misconduct. It is the further claim that the only injury Mr. Hanna received was to his hand, and that he died of pneumonia, to which the injury he received did not at all contribute, and that the court should say as a matter of law that the injury was not the proximate cause of his death. The claim that Mr. Hanna was guilty of intentional and willful misconduct is based upon the testimony of the foreman; we quote some of it:

"Q. State whether or not you had ever said anything to Mr. Hanna about operating or not operating any of the saws in your department. "Mr. Crowley: I object to that testimony.

"Mr. Zierleyn: I think it is very proper, Mr. Crowley.

"Mr. Crowley: I desire that my objections stand as a matter of record.

"Mr. Zierleyn: Answer the question.

"A. I took him off the carpenter work because I did not think his eye sight was good enough for it he had to put glasses on for it-and I told him if he would not keep off the saw I would have to fire him, and not only told him that, but I told his son too."

[2] Mr. Hanna knew what conversation he had with the foreman upon that subject. He is not here to give his version. Such a contingency has been guarded against in section 12553, C. L. 1915. The language of the statute is not ambiguous, as a reference to it will show. It has often been construed by this court, as is shown by the many cases cited in the notes to section 12553. See, also, the case of Horn v. Arnett (N. J. Supp.) 102 Atl. 366.

The testimony of the foreman should not have been received. With it eliminated, there is nothing to indicate that Mr. Hanna was warned not to use the saw.

It is said that the case represented by the plaintiff, when the improper cvidence is eliminated, must be determined as a question of law in favor of the defendant. This makes it necessary to give a resume of the testimony most favorable to the plaintiff. After the accident the company made a first report to the Accident Board, in which it was said: "Occupation of employee carpenter. Date of accident September 14, 1917. Nature and cause of injury, bruised left hand."

A second report was made September 19th in which the following appears:

"Place of accident in detail, carpenter shop. Cause and manner of accident was cutting wood for wedges. In taking pieces from the saw one piece caught and struck him on the joint of the first finger of left hand. This finger was off at joint. It jammed stump of finger and bruised it."

Against the objection of defendant Mr. Hanna's doctor was allowed to testify:

"Why he said that he had received it at a machine sawing wood. A piece of wood flew from the machine and struck him across the chest." In his testimony appears the following:

"Q. Do you at this time lay any stress upon the injury to the hand, or the injury to the chest, or both? A. Yes; I do on the injury to the chest. The hand was simply an abrasion of the hand that was septic, but I do not believe it had--did not have any factor towards causing his death. "Q. It was the alleged injury to the chest which was the factor that finally resulted in his death, in your opinion? A. Resulted in pneumonia; yes.

"Q. In other words, the injury to the chest was the thing that caused the pneumonia in your opinion A. Yes. * *

"Q. The question is this-perhaps it would be more simple to say it in this way: In your opinion, the cause of pneumonia was the blow on the chest? A. Yes, sir. * * *

"Q. And the pneumonia caused the death? A. Yes, sir. The man was at that time delirious, and he was carrying a tremendously high temperature and rapid pulse, and I thought there was a septic condition going on at that time. The man at the first time I seen him, I would not have taken anything he said to me anyway, because he was not in his right mind; he was delirious. So the next time I seen him I went into the matter closer, and I found the hand was not the entire cause of the pneumonia, but the chest had been injured.

"Q. Would the infection in any way superinduce the pneumonia? A. I do not think in this case.

"Q. Could it contribute to the cause of death? A. Yes; perhaps by having an embolus leave the wound in the hand and cause an infarct in the hand-that would probably cause pneumonia-but the post mortem showed that the pneumonia was of too large an area for embolic pneumonia.

"Mr. Crowley: So that, in your judgment, Doctor-I understand you now that the blow on the chest caused this traumatic condition? A. Yes; I made the diagnosis of traumatic pneumonia, caused by the concussion of the board striking the chest."

A witness, who was at work about 50 feet away from Mr. Hanna, testified the latter was cutting a piece of wood on the saw.

"Q. What kind of a piece of wood did he have at the saw?

It was a piece of pine about 18 inches long.

A.

"Q. How wide or how thick was it? A. Well, when I seen it it was in two pieces. I only seen one piece of it, and it was about 5 inches wide. "Q. About 5 inches wide. You don't know what he was going to saw that for, do you? A. No.

"Q. What was the first notice-what was the first you noticed with respect to this accident? A. I looked up, and I seen him holding his hand to his side.

"Q. Was he holding his hand to his right side? A. Yes. * * "Q. Now, did you see this piece of wood that he was working with after that? A. Yes, sir.

"Q. Did you notice anything peculiar about the wood? A. It was broken; that is all.

"Q. Did you notice any links of a chain in the wood? A. Yes. "Q. What kind of chain was that? A. I think it was a kind of four-cornered piece.

"Q. What kind of chain was it, a watch chain? A. A watch chain, yes. *

"Q. Where was the rest of the chain? A. In his pocket.

"Q. Which pocket? A. Why, I think it was the vest pocket.

"Q. Vest? A. The vest pocket. *

* *

"Q. What caused you to look up and notice what was happening at that saw. A. When I heard that piece fly over the saw.

"Q. When you heard the piece of wood fly over the saw? A. Yes. "Q. Did it strike the saw? A. Yes; it struck the saw.

"Q. How do you know it struck the saw? A. Why, it would not have went back otherwise.

"Q. I assume then that it made a noise? A. Yes.

"Q. And you heard that and glanced up? A. Yes.

"Q. When you first glanced up, what was Mr. Hanna doing? A. He was holding his two hands on his left side.

"Q. On his left side? A. Yes."

The piece of wood after it struck Mr. Hanna flew 10 or 12 feet down an open stairway and hit Mr. Thomas, who was coming up the stairs, knocking him down. The record shows that part of the duties of a carpenter are to make molding flasks, and in doing so that the carpenter would use a circular saw in preparing some of the pieces.

Mrs. Hanna testified as to what happened on the evening of the accident, in part as follows:

"A Well, the usual time he got home about a quarter to 6 to the best of my knowledge.

"Q. What condition was he in when he arrived home? Well, his hand was terribly swollen and very much inflamed, and he said he was very weary and complained terribly of his breast.

"Q. Did you examine his hand? A. Yes, sir; I was ordered by first aid to bathe it in hot water. I told him my best judgment called for cold water, but he said no; he was told at the hospital, hot water. Q. Did you make an examination of his brest? A. Yes, sir; I did. "Q. What did you notice particularly about his chest? A. There was a very red place on his chest.

"Q. Where was that? On his chest, as near as I can tell you, over his lungs."

It is urged that what Mr. Hanna told the doctor about how he was hurt was improperly admitted. We think this was so under the case of Ginsberg v. Burroughs Adding Mach. Co., 170 N. W. 15.

[3, 4] But with this testimony omitted we think it cannot be said there was no testimony upon which to base the award of the Industrial Accident Board and their finding that the injuries to Mr. Hanna were the proximate cause of his death. Under such circumstances this court will not interfere. See Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771; Papinaw v. Railway Co., 189 Mich. 441, 155 N. W. 545; Vogeley v. Detroit Lumber Co., 196 Mich. 516, 162 N. W. 975. The award is affirmed, with costs to the plaintiff.

SUPREME COURT OF MICHIGAN.

NELSON
V.

IRONWOOD & B. RY. & LIGHT CO. (No. 47.)*

1. MASTER AND SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT "COMMON CARRIER BY RAILROAD."

A street railway engaged in carrying passengers between states is a "common carrier by railroad" within the meaning of the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665).

(For other cases, see Master and Servant, Dec. Dig. § 87.)

(For other definitions, see Words and Phrases, First and Second Series, Common Carrier.)

4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT.

Where a master had not elected to come under the Workmen's Compensation Act, an agreement for payment of compensation was not binding upon the servant.

(For other cases, see Master and Servant, Dec. Dig. § 351.)

Error to Circuit Court, Gogebic County; S. S. Cooper, Judge. Action by Victor O. Nelson against the Ironwood & Bessemer Railway & Light Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ.

Charles M. Humphrey, of Ironwood (Sanborn, Lamoreux & Pray, of Ashland, Wis., of counsel), for appellant.

James A. O'Neill, of Ironwood (S. G. Nelson, of Ironwood, of counsel), for appellee.

KUHN, J. The defendant is a corporation admitted to do business in both Michigan and Wisconsin, and at the time of the accident which gives rise to this litigation was operating a street railway and interurban system, the entire system extending from the city of Bessemer, as its eastern terminus, in the state of Michigan, to the village of Gile, Wis., as its western terminus. Its tracks were laid along the main streets of the city of Ironwood, Mich., and the village of Hurley, in the state of Wisconsin. It operated interurban cars from the city of Bessemer to a point in the city of Ironwood, a short distance east of the state line. It also operated cars, designated as local cars, from Jessieville, a suburb within the city limits of Ironwood, through the city of Ironwood, through Hurley, Wis., to Gile.

The plaintiff, at the time of the accident, was employed as a motorman on one of the city or local cars. His employment was limited to the city of Ironwood, and he commenced his run at a point in that city, took his car on a trip eastward through the city to the eastern terminal of the line at Jessieville, and returned to the point at which he took charge, being at all times in the city of Ironwood. When he completed his run through the city or Ironwood, the car was turned over * Decision rendered, Dec. 27, 1918. 170 N. W. Rep. 45.

an another crew, the conductor on the plaintiff's run becoming the motorman, and the car was then taken on a trip across the line into Hurley, Wis., and return.

On the night of the accident, at about 8:30 in the evening, the plaintiff had taken his car on the trip through Ironwood to the eastern terminal of the line and was returning without any passengers. As the car turned the corner of Ayer and Marquette streets in the city of Ironwood, the trolley pole came off the trolley wire, and, as was his duty, he went to the rear of the car with reference to it. In replacing the trolley pole, it was necessary for him to stand between the rails of the track in the rear of his car and manipulate a rope that was attached to the trolley pole. As he was in the act of replacing the trolley pole, an interurban car approached rapidly from the rear and collided with his car, which resulted in the plaintiff being caught between the cars and severely injured, and as a result he lost his left leg at the thigh. At the time of the accident the defendant railway company had not elected to come under the state Workmen's Compensation Law (Pub. Acts [Ex. Sess.] 1912, No. 10), and this action was brought to recover damages, as a common-law action, resulting in a verdict for the plaintiff in the sum of $12,500.

At the time the plaintiff was injured, he was 21 years of age, and had resided in the United States a little over 2 years, having emigrated from Sweden, and it is claimed that he was unable to speak or read the English language and could understand but little of it. The defendant, on the trial, pleaded settlement and release, and there was offered and received in evidence on the trial, over the objection of plaintiff's counsel, an instrument purporting to be an agreement in regard to compensation, signed by the plaintiff and bearing date of November 1, 1916, seven days after the accident. This agreement was made out on the usual blank form used by the Industrial Accident Board. The defendant at the time of the accident was not subject to the provisions of the Workmen's Compensation Act, and did not elect to come under that act for several months thereafter. This paper was signed by plaintiff while he was confined in the hospital, and about a month later he received a check for a little over $8, and thereafter he was paid about $16 every two weeks until the following March, a period of about three months. After he had consulted his counsel, he was advised to no longer accept payments and did not accept any money thereafter.

The questions which are raised by defendant's counsel are discussed in their brief and were discussed on the argument under three heads, as follows:

"(1) That the parties to this action, at the time of the accident, were subject to the rule of liability established by the federal Employers' Liability Act, and that the case was improperly submitted to the jury upon the theory that the defenses were taken away.

"(2) That the settlement agreement having been entered into in good faith, and the plaintiff having received payment on that settlement after discovering that the defendant was not under the Michigan Workmen's Law, ratified and confirmed the settlement agreement.

"(3) That the plaintiff could not maintain his action without returning or offering to return to the defendant the money received by him and the money paid for him under this settlement agreement."

1. Is the defendant a "common carrier by railroad" within the meaning of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665)? In the determination of this question, and in attempting to ascertain what the legislative intent of Congress was in passing the act in question, we will necessarily be governed by the federal decisions. Whether or not it was within the legislative contemplation that the word "railroad" was to include a street railroad must be determined by construing the statute as a whole. Plain