tiff's counsel strongly urge that it was not the intention of Congress by this act to legislate with reference to the employees of purely local street railways which might be engaged in interstate commerce, and cite in support of their contention the case of Omaha, etc., St. Ry. Co. v. Interstate Commerce Commission, 230 U. S. 324, 33 Sup. Ct. 890, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385, where the court construed the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379), and the question was whether street railways became subject to its provisions and under the jurisdiction of the Interstate Commerce Commission. Mr. Justice Lamar, in writing the opinion for the court in that case, showed the distinction between ordinary street railways and commercial railroads, and reviewed the act, and concluded, from its entire context and from provisions therein contained which were peculiarly applicable to commercial railroads, and not to street railways operating only on the streets of cities and villages, that it was not the intent of Congress to include purely street railways within the provisions of that act. An examination of the federal Employers' Liability Act, however, does not, in our opinion, call for the drawing of any such distinction, and, as was said by Mr. Justice Clarke in reference to the Omaha Case, supra, in the more recent case of Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630, 37 Sup. Ct. 654, 61 L. Ed. 1360:

"The case is of negligible value in determining either the construction of the act we are considering in this case (Employers' Liability Act), or the classification of the defendant, which clearly enough is a suburban railroad common carrier of passengers within the scope of the federal Employers' Liability Act, as is sufficiently decided by United States v. Baltimore & Ohio Southwestern Ry. Co., 226 U. S. 14 [33 Sup. Ct. 5, 57 L. Ed. 104]; Kansas City Western Ry. Co. v. McAdow, 240 U. S. 51 [36 Sup. Ct. 252, 60 L. Ed. 520]; Spokane & Inland Empire R. R. Co. v. United States, 241 U. S. 344 [36 Sup. Ct. 668, 60 L. Ed. 1037]; and Spokane & Inland Empire R. R. Co. v. Campbell, 241 U. S. 497 [36 Sup. Ct. 683, 60 L. Ed. 1125]."

It seems to us clear that the purpose and intent of the federal Employers' Liability Act was to establish throughout the United States a uniform rule of broad liability, on the part of common carriers by railroad to their employees for negligent personal injuries, in so far as, and to the full extent to which the regulative power of Congress extends, in order that the legal status of such employers' liability for negligent injuries inflicted upon an employee while both employer and employee are engaged in interstate commerce, instead of being subject to the uncertainty of varying rules depending upon the particular locality in which the accident may chance to occur, may be fixed by a single rule, and by such a rule, moreover, as will tend to impel such carriers to avoid or prevent the negligent acts and omissions for which the statute gives the right of recovery, thereby promoting not only the safety of the employees, but also, as a necessary consequence, the safer and less impeded transportation of the objects of commerce, whether freight or passenger. If any distinction whatever can be drawn between street railways and other railroads in any respect that can fairly be claimed to have a possible bearing on the question of the legislative intent of Congress as to the inclusion or exclusion of the former class of carriers, the difference, we are convinced, will be found to be merely one of degree and not of kind. No substantial reason suggests itself to us why the safe and unimpeded transportation of passengers from one state into another on a local street railway line operating solely over city streets, and the safety of the employees of such a railway, should not have been objects of solicitude on the part of Congress as well as the like beneficial results in connection with other forms of interstate railroad transportation. Nothing in the terms and provisions of the act indicates a design to exclude street railways. Every provision of the act is as applicable to a purely street

railway carrier whose lines extend from one state into another as to an interstate suburban electric railroad or an interstate steam railroad.

In the case of Arends v. Rapid Ry. Co., 172 Mich. 448, 138 N. W. 195, this court had under consideration an act of our Legislature (Pub. Acts 1909, No. 104) the title of which was "An act to prescribe the liability of common carrier railroad companies to their employees," and the express language of section 1 of the act made it applicable to "every common carrier railroad company in this state." It was determined in that case that the term "railroad" was broad enough to include street railways.

[1] In our opinion, it must be said that it was the intent of Congress by the act in question to include street railways that were engaged in interstate commerce, and therefore, if it can be said that the plaintiff was engaged in interstate commerce at the time of the accident, his action should have been brought under the federal act. See South Covington & C. St. Ry. Co. v. Finan's Adm'x, 153 Ky. 340, 155 S. W. 742; Kiser v. Metropolitan St. Ry. Co., 188 Mo. App. 169, 175 S. W. 98.

[2] It is the contention of plaintiff that, even if it should be held that the defendant, in the operation of its street railway, was under the federal act, plaintiff was not at the time of the accident engaged in interstate commerce, and was not, therefore, subject to the provisions of that act. With this contention we cannot agree. In the instant case the street car upon which the plaintiff was employed was an instrumentality clearly engaged in interstate commerce, and the case comes within the test laid down in Shanks v. D., L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, where it stated that the question is:

"Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

The car upon which the plaintiff was employed went from one state into the other, and, the plaintiff being employed thereon, the case is clearly within the test above set forth, and it must therefore be said that he was engaged in interstate commerce. See, also, North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Spokane, etc., R. Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683,60 L. Ed. 1125; Western Oil Ref. Co. v. Lipscomb, 244 U. S. 346, 37 Sup. Ct. 623, 61 L. Ed. 1181; South Covington & C. St. Ry. Co. v. Covington, 235 U. S. 537, 35 Sup. Ct. 158, 59 L. Ed. 350, L. R. A. 1915F, 792; Moliter v. Wabash R. Co., 180 Mo. App. 84, 168 S. W. 250.

[3] It is next contended by counsel for plaintiff that, while under the state law the defenses of negligence of fellow servant, contributory negligence, and assumption of risk were not open to defendant, nevertheless there was no prejudicial error committed in submitting the case on the theory that the case was not subject to the federal act, because, under the facts in this case, the defendant was not deprived of making any defense that it could have made under the federal act, and it is therefore contended that, even if it should be held that the plaintiff was subject to the federal act, the judgment should be affirmed. With this contention we cannot agree, because, under the federal act, the question of plaintiff's contributory negligence might properly be submitted to the jury as affecting the question of damages, and we are impressed that under the facts of this case the question was one of fact, and would necessarily be submitted to the jury.

[4] 2. With reference to the agreement in regard to compensation, which it is claimed the plaintiff signed following the accident, we are of the opinion that it should not be held as a bar to this action. In accepting these compensation checks, plaintiff testified that he did not know, and was not told, what they were for, and that he assumed that they were probably club money, as he had worked on a railroad in the old country where a fund was provided by the employees for such contingencies. At the time that the so-called release agreement was signed, the defendant had not

elected to come under the Workmen's Compensation Act, and the agreement, therefore, was not binding upon the plaintiff at the time it was executed. See Bernard v. Mich U. Trac. Co., 188 Mich. 504, 154 N. W. 565. The court, at the request of the defendant, charged the jury that if they found that the agreement in regard to compensation was a mutual agreement, and the parties understood each other, or if the plaintiff afterwards ratified the agreement by his action and intent to release the defendant, the plaintiff would be bound by it, and it would be an absolute release. This was as favorable an instruction as the defendant was entitled to. Plaintiff's testimony tended to show that his signature to the instrument was obtained by false and fraudulent representations, and even if it purported to be a release or could be construed to be a release if entered into fairly and understandingly, in our opinion the jury was warranted, under the testimony and the charge of the court, in finding that it was not binding upon the plaintiff.

[5] 3. Neither are we of the opinion that, because of the claim that it was not understood by the plaintiff that the amounts received were in settlement of the disputed liability, it follows as a matter of law that a return of the money was necessary. The question was in dispute, and should be submitted to the jury. See Brown v. Ann Arbor R. Co., 183 Mich. 574, 149 N. W. 1031.

Under the declaration filed in this cause, the court should have granted the motion made by the defendant that the plaintiff had not made out a case, as he had elected to stand on his common-law action; it appearing that the parties to the action were both subject to the federal Employers' Liability Act.

For these reasons, the judgment must be reversed, and a new trial granted.

SUPREME COURT OF MICHIGAN.

SCHANNING

V.

STANDARD CASTINGS CO. ET AL. (No. 88.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION PROVISIONS OF INDUSTRIAL ACCIDENT BOARD.

It is the province of the industrial accident board to weigh evidence and draw inferences therefrom.

(For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION

PROCEEDINGS-SUFFICIENCY OF EVIDENCE.

In proceedings under Workmen's Compensation Act, evidence held to sustain finding of industrial accident board that employee working with truck was injured by unexpected dropping of truck into hole, and that resultant jerk and unusual strain upon employee caused a rupture.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

* Decision rendered, Dec. 27, 1918. 169 N. W. Rep. 879.

Vol. III-Comp. 22.

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "ACCIDENTAL INJURY."

A rupture caused by jerk and strain upon employee working with truck upon the unexpected dropping of truck into a hole held an "accidental injury," within the Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

(For other definitions, see Words and Phrases, Second Series, Accidental Injury.)

Certiorari from the Industrial Accident Board.

Proceedings under the Workmen's Compensation Act (Pub. Acts Ex. Sess. 1912, No. 10), by Carl Schanning to obtain compensation for personal injuries, opposed by the Standard Castings Company, employer, and the General Accident Fire & Life Assurance Corporation, Ltd., insurer. Award made by industrial Board, and employer and insurer bring certiorari. Affirmed.

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

Thomas A. Lawler and John F. Berry both of Lansing, for appellants.

OSTRANDER, C. J. The award was $10 a week for 91⁄2 weeks and hospital and medical expenses incurred in the first 3 weeks. Plaintiffs in certiorari say there was no competent evidence before the industrial accident board from which it could find that an accident which arose out of and in the course of claimant's employment happened; that there is no competent evidence that claimant received an injury from the alleged accident or that his alleged disability resulted therefrom.

Claimant says that he was injured October 31, 1917. His employer, on November 1, 1917, reported to the board that claimant was involved in an accident, the nature of his injury being a rupture, “lifting castings." A second report was made by the employer November 14, 1917, in which it is stated that—

"The cause and manner of accident was trucking castings from foundry to rattler room (castings slipping from truck, tried to hold same on, causing a rupture)."

The board found:

"That the unexpected dropping of a truck into a hole with the resultant jerk and unusual strain upon applicant, causing the rupture, constituted an unexpected, unusual, and undesigned occurrence, also an unlooked for mishap, and an accident within the meaning of the Workmen's Compensation Act."

Claimant gave testimony through an interpreter. The interpreter's statements were:

* *

"He says he was handling iron, called 'bulldog,' him and another fellow, and the iron was weighing between 500 and 600 pounds. They placed it on a truck, and, as the other fellow jerked the truck, he hurt his back. *After that, he could not work, and he went immediately to consult a physician. * He says the other fellow was pulling, and he was pushing, and that the truck fell into a hole, and that is what gave him the jerk."

* *

Giving the name of the physician he consulted, and asked what was done for him, he proceeded:

"He says he took him to the drug store and bought him a belt, and after that he was going to him and taking treatments."

Inquired of about the position of the belt on his body, he said:

"He put it across his back and the side of his limb. He says he still has it on now."

Claimant returned to work January 5, 1918, and of the interim he testified:

"He says the doctor told him not to go to work any sooner, and he got kind of disgusted because he thought the belt wasn't good, and he said he didn't want to give him another belt, and he says: 'If you want to go to work, you can go to work.'"

The physician was not examined, it being stated that he was in the army. Further testimony was given by claimant to the effect that he first felt pain in his back, then in his privates, that he was advised by the doctor to have an operation performed, and refused to do so. When he was hurt, he reported to his foreman, telling him he could not work and that he had hurt his back. Claimant made a statement December 5,1917, which was written down by the one to whom it was made, in English, and was read to claimant by a German acquaintance in German; the friend undertaking to translate the English into German. This statement is to the effect that, while picking up a casting from the floor to place it on the wheelbarrow, he felt a pain in his back and stopped work and went home.

"When I stooped to pick this casting up, a sharp pain caught me in the back, and I couldn't straighten up. After I got straightened up, I went to the office to report, and then went to the doctor's office."

Claimant was examined with reference to this alleged statement and denied having given it as it reads. The man with whom claimant was working was a witness. He gave testimony corroborating that given by claimant except that it is his recollection that he was pushing the truck and claimant was pulling it. He testified that the truck dropped in a little hole "and raised him up like that." Upon being recalled, claimant testified, as the record is understood, that he was pulling "and the other fellow was pushing."

[1-3] It is the province of the board to weigh evidence and draw inferences therefrom. We cannot say there was no evidence to support the finding. If, in pushing or pulling the truck by its handles, one or more of its wheels dropped into a hole, jerking claimant in such a manner as to cause a rupture, it was an "accidental injury." Robbins v. Original Gas Engine Co., 191 Mich. 122, 157 N. W. 437.

The award is affirmed.

SUPREME COURT OF MICHIGAN.

SMITH

V.

BATTJES FUEL & BUILDING MATERIAL CO. ET AL. (No. 54.)*

1. MASTER AND SERVANT-WORKMEN'S

ACT-SURGICAL OPERATION.

COMPENSATION

Where injured servant's condition of total disability was entirely due to his original injury, State Accident Fund was not entitled to be relieved from weekly payment it had agreed to make during disability, on ground that present disability was caused by unskillful treatment or refusal to submit to operation.

(For other cases, see Master and Servant, Dec. Dig. § 385 [18].) * Decision rendered, Dec. 27, 1918. 169 N. W. Rep. 943.