Appeal from District Court, Wyandotte County. Action by William Goodwin against the Cudahy Packing Company, for compensation under the Workmen's Compensation Act. Judgment for plaintiff, and defendant appeals. Affirmed. McFadden & Claflin, of Kansas City, for appellant. BURCH, J. The action was one for compensation. recovered, and the defendant appeals. The plaintiff The following facts were established by findings of the jury: The plaintiff attempted to settle compensation by agreement. He consented to arbitration. He served notice he would not arbitrate before the establishment committee, representative of employer and workmen. The defendant refused to arbitrate except before that committee. The plaintiff made no application to the judge of the proper court for appointment of an arbitrator to settle the matter. [1] The defendant insists that application by the workman for court appointment of an arbitrator was a condition precedent to resort to the remedy by action. Chapter 226 of the Laws of 1917 contains the following, among other provisions: "Compensation due under this act may be settled by agreement." Section 10. "If compensation be not so settled by agreement: (a) If any committee representative of the employer and the workman exists, organized for the purpose of settling disputes under this act, said committee shall have the power to adopt rules governing its procedure and action, and the matter shall, unless either party objects by notice in writing delivered or sent by registered mail to the other party before the committee meets to consider the matter, be settled in accordance with said rules by such committee or by an arbitrator selected by it. (b) If either party objects or there is no such committee, or the committee or the arbitrator to whom it refers the matter fails to settle it within sixty days from the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or appointed by any judge of a court where an action might be maintained upon the written application of either party to said court. The consent to arbitration shall be in writing and signed by the parties, and may limit the fees of the arbitrator and the time within which the award must be made, and unless such consent or order of appointment expressly refers other questions, only the question of the amount of compensation shall be deemed to be in issue, but either party shall have the right to require that the arbitrator shall also find the character and quality of the disability and the period for which payments of compensation shall continue in accordance with the provisions of this act." Section 11. "The committee or arbitrator shall not be bound by technical rules of procedure or evidence but shall give the parties reasonable opportunity to be heard and to present evidence, and shall act reasonably and without partiality, and shall make and file an award, with the consent to arbitration or the order of the court appointing the arbitrator attached, in the office of the clerk of the proper district court within sixty days. Section 12. * "A workman's right to compensation under this act may, in default of agreement or if the employer shall have refused to consent to an arbitration of the workman's claim for compensation, be determined and enforced by action in any court of competent jurisdiction, but no such action shall be maintained until and unless the workman shall have consented to an arbitration or applied to the court as hereinbefore provided for an arbitrator." Section 20. Vol. IV-Comp. 13. The varieties of conduct which may be displayed by both employer and workman are so numerous that it would be impossible to anticipate all of them and apply the statute to all of them. Therefore the interpretation of the statute will be limited for the present to a few general observations essential to decision of the particular question presented. Broadly speaking, the statute contains substantive and adjective provisions. The substantive provisions relate to settlement of compensation by agreement and settlement of compensation by arbitration. The adjective provisions relate to selection of an arbitrator, in default of settlement of compensation by agreement, and to action for compensation, in default of agreement and arbitration. It is contemplated that compensation shall be settled by agreement or by arbitration, and without litigation. If there be an agreement, that ends the matter. In default of agreement, the statute requires compensation to be settled by arbitration, and employer and workman are expected to sign a writing, expressing such consent and stipulating respecting matters which they desire to be referred. The language of section I'l is that if the establishment committee be set aside as arbitrator, "the matter shall be settled by a single arbitrator," etc. In the statute which was superseded by the act of 1917 the language was "the matter may be settled," etc. Gen. Stat. 1915, § 5918. The result is, it is wrongful for either employer or employe to refuse to arbitrate in case of failure to agree on compensation. The workman must consent to arbitration, or go without compensation. If the employer consent, arbitration is compulsory upon the workman. If the employer withhold consent to arbitration, the workman must nevertheless have consented, or he, too, is at fault, and is denied remedy by action. If the employer refuse to consent to arbitration, the workman who has consented is not precluded from compensation, but has a remedy by action. If, in default of agreement, the workman consent to arbitration and the employer do not refuse to consent, the arbitrator shall be the establishment committee. Either the employer or the workman may object to the committee as arbitrator. In that event a single arbitrator, selected by agreement, shall act. In default of agreement on an arbitrator, either party may apply to the proper court-technically the judge of the proper court-for the appointment of an arbitrator who shall settle the matter. The remedy of application to the court for appointment of an arbitrator is a last resort. The establishment committee has precedence as arbitrator. That committee having been set aside, the parties should agree. In default of agreement, a court appointment should be applied for, in order that arbitration may not fail. The establishment committee having been set aside and no agreement on an arbitrator having been reached, the workman must perfect the machinery of arbitration by applying for appointment of an arbitrator, or he will be precluded from enforcing compensation by action. If, however, at any stage of the proceedings, the employer definitely refuse to consent to arbitration, the workman who, in default of agreement on compensation, has consented to arbitration need not go further with arbitration. The statute does not require him to do futile things. He cannot be at fault for not procuring appointment of an arbitrator when such appointment would be useless on account of the declared attitude of the employer. Summing up, the conditions upon the workman's resort to the remedy by action are these: (1) In default of agreement settling compensation, he must have consented to arbitration. (2) He must have applied to the court for the appointment of an arbitrator, when arbitration would otherwise fail. (3) The employer must have refused to consent to arbitration. Applying the principles just stated to the present controversy, the workman attempted to settle compensation by agreement. In default of agreement he consented to arbitration. He had the statutory right to object to the establishment committee as arbitrator, and did so. The defendant refused to arbitrate before any arbitrator except the establishment committee, and so rendered any further effort on the part of the plaintiff to secure arbitration useless and unnecessary. Therefore the workman was not at fault, and was entitled to maintain the action. [2] The judgment was for a lump sum. The defendant insists that judgment should have been one for periodical payments, because the injury was not ascertainable by objective examination. The statute reads as follows: “The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for, periodical payments, as in an award; provided, in no case shall a lump sum judgment be rendered for any injury not ascertainable by objective examination, but in such cases the court may order periodical payments during incapacity of such sums as may be due under the provisions of section 4 of this act and such judgment may be reviewed at any time after the expiration of six months upon application of either party and the amount allowed by the court reduced or raised in accordance with the evidence introduced at the time of such review." Laws 1917, c. 226, § 20. There was evidence that the injury resulted from a knife cut just above the wrist on the left arm. It took eight stitches to close the wound. The plaintiff was unable to work for seven months, and his arm bothers him in lifting and grabbing. While this evidence was properly received for other purposes, none of it could be considered for the purpose of determining the nature of the judgment, whether for a lump sum or for periodical payments. That question could be determined by objective examination only. A physician testified as follows: "On examination, I found a scar a little above the wrist on the left arm, and on inquiry as to how that scar came, he told me that it was a knife cut as I remember, and the examination of the hand disclosed the fact that the thumb on the left side-the tendon does not draw the thumb down into the hand as well as on the right side; there is some loss of motion and grab in the left hand, probably due to the severing of the tendon that affects the thumb. The grab in the left hand is some less than it should be, for a right-handed man, in the left hand. "Q. Now, are you able to state, doctor, whether there were any tendons or muscles cut there? "A. Well, one would suppose from the length of the scar and from the condition that the hand is left in now, that there was. "Q. State whether or not that tendon has been brought together again. "A. Yes; evidently the tendon has been brought together, and it does not work as freely as it should because it has gotten the scar there." Eliminating the history of the case and eliminating the physician's inferences and conclusions, the examination disclosed a scar, disclosed a tendon the free movement of which was inhibited by the scar and which did not draw the thumb down into the hand, and disclosed loss of motion and grab. These facts were ascertainable, and were ascertained by inspection and manipulation alone, purely objective means, and were sufficient to sustain a lump sum judgment. The judgment of the district court is affirmed. All the Justices concurring. COURT OF APPEALS OF KENTUCKY. LAMBERG V. CENTRAL CONSUMERS' CO.* 1. MASTER AND SERVANT-INJURIES TO SERVANT- DIRECTION OF VERDICT. Where the evidence is equally consistent with the existence or nonexistence of negligence on the part of the master, direction of verdict for the master is proper. (For other cases, see Master and Servant, Dec. Dig. § 286[1].) 2. MASTER AND SERVANT-INJURIES TO SERVANT-EVIDENCE-DIRECTION OF VERDICT. In a servant's action for injuries, plaintiff's testimony held not open to the construction, justifying direction of verdict for defendant, that the injury was caused by plaintiff's ankle having turned "through no defect in the floor." (For other cases, see Master and Servant, Dec. Dig. § 285[1].) 3. MASTER AND SERVANT-INJURIES SAFETY OF WORKING PLACE. TO SERVANT Whether or not a place is reasonably safe for a servant to work in depends on the character of the work. (For other cases, see Master and Servant, Dec. Dig. § 107 [2].) 4. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE AND PROXIMATE CAUSE-QUESTIONS FOR JURY. In a servant's action for injuries while lifting a heavy cask, whether the master was negligent in failing to furnish a reasonably safe place, the floor being rough and uneven, and whether injuries proximately resulted from such negligence, held for the jury. (For other cases, see Master and Servant, Dec. Dig. § 286[3].) 5. MASTER AND SERVANT-INJURIES TO SERVANT-WORKMEN'S COMPENSATION ACT-ABOLITION OF DEFENSES. If accident occurred, after the Workmen's Compensation Law became effective, the defenses of contributory negligence and assumed risk are not available to the employer, who had not accepted the provisions of the law. (For other cases, see Master and Servant, Dec. Dig. § 356.) Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Action by Fred W. Lamberg against the Central Consumers' Company. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded for new trial. Isaac Sherman, of Louisville, for appellant. Kohn, Bingham, Sloss & Spindle, of Louisville, for appellee. *Decision rendered, May 16, 1919. 211 S. W. Rep. 746. CLARKE, J. The appellant, who was plaintiff below, instituted this action to recover damages for personal injuries alleged to have resulted from the defendant's negligently requiring him, over his protest and upon assurance of safety, to perform services without sufficient help and in a place not reasonably safe for the work. Although other questions are argued, the vital one here is whether the court erred at the completion of plaintiff's testimony in sustaining defendant's motion for a directed verdict. Plaintiff was directed by his superior to assist him in raising from the floor one side of the top of a beer cask, and placing thereunder an ordinary wooden "horse." He protested that the task required more than two men and that the floor where the work was to be done was not reasonably safe for the purpose; but, upon assurance that there was no danger to him in their doing the work at the place and without assistance, he helped his superior to lift the load, in doing which he claims to have been injured. He testified in substance that the cask top weighed in his judgment somewhere about 800 or 1,000 pounds; that the floor where he was required to stand was made of planks which had become worn and warped until the floor was rough and uneven, and some planks were as much as 2 inches below the level of others adjoining them; that in helping to lift the load he was caused by its weight to shift his feet to maintain his balance; that in so doing he could not see where he was stepping and injured his ankle to such an extent that his foot had to be amputated, either by stepping in one of the holes or depressions in the floor, "or my ankle turned on that account." Counsel for defendant then asked him, "On what account?"-to which he replied: "On account of the rough floor there, stepping in the hole. I could not see what I was doing with the weight in my hands." Later in his cross-examination he was asked and answered: "Q. Now, Mr. Lamberg, did you injure your foot because your ankle turned, or because you stepped in the hole, or because this board sagged with you? A. I could not say exactly which one it was. It was either one or the other, as I stated there." [1, 2] Upon the theory that plaintiff's testimony was in effect that his injury resulted, either from his ankle having turned "through no defect in the floor," or because of such a defect, the court gave the peremptory instruction for the defendant under the thoroughly established rule that, where the evidence is equally consistent with the existence or nonexistence of negligence, such an instruction is proper. We are, however, of the opinion the court was in error in the effect given to plaintiff's testimony as to the cause of his injury, as we do not think it is susceptible of the construction that the injury was caused by his ankle having turned "through no defect in the floor" or because of such a defect. He stated rather, when attempting to explain just what caused his injury, that it was caused by his stepping in one of the holes or his ankle turned "on account of the rough floor there, stepping in the hole." This clearly means that his injury resulted, either directly from stepping in a depression in the floor, such as he had described, or else from his ankle turning as a result of having stepped in such a depression, and does not permit of the construction, placed upon it by the court, that his ankle may have turned "through no defect in the floor." And this is true notwithstanding his later statement, quoted above, that he did not know exactly what caused his injury, but that "it was either one or the other (of the three ways stated by counsel) as I stated there," since he had only stated that, if his injury resulted from his ankle turning, his ankle was caused to turn by the depressions in the floor, and he nowhere stated that his ankle might have turned "through no defect in the floor." It is therefore apparent that the ground upon which the court rested the peremptory instruction is untenable; but we must still determine whether or not the evidence for plaintiff is sufficient to show the place |