Eberts v. Detroit, Mt. Clemens & Marine City Railway

Carpenter, J.

(after stating the facts). The principal complaint of defendant is that the court erred in refusing to direct a verdict in its favor when plaintiff first rested his case. The ground of this complaint is that the testimony of plaintiff proved that he was being carried gratuitously, and it is insisted that a common carrier of passengers may lawfully contract to exempt itself from liability for the negligent injury of a passenger being carried gratuitously. Does the testimony of plaintiff prove that he was being carried gratuitously ? Defendant’s argument that it does rests in part upon the assumption that the furnishing of the pass-book had no relation to the plaintiff’s transfer from Mt. Clemens to Marine City. We think this assumption unfounded. We infer from plaintiff’s testimony that the pass-book was given him at the time the order of transfer was communicated., We summarize plaintiff’s testimony as follows: While in defendant’s employ in Mt. Clemens where he resided, he was ordered to work at Marine City, a town some distance away; his wages were to remain the same, but he was given a pass-book which enabled him to ride upon defendant’s railway between his home and his place of work, and he used said pass-book for that purpose.

We think from this testimony that it may be inferred that the pass-book was a part of the consideration "for *264 plaintiff’s services. From what was said and what was done it may justly be inferred that both parties understood that as a consideration for his services at Marine City plaintiff should receive wages of $1.75 per day and transportation between his home and the place he worked. Under this view of the testimony, the pass-book was not furnished gratuitously and plaintiff was not being carried gratuitously.

Doyle v. Railroad Co., 166 Mass. 492 (33 L. R. A. 844), is a similar case and the decision is in harmony with these views. It was also held in that case — and this proposition I understand to be conceded by defendant— that the transportation not being gratuitous, a common carrier of passengers has no lawful right to enter into a contract exempting itself from liability for the negligence of its employés. See Weaver v. Railroad Co., 139 Mich. 590 .

It is said in appellant’s brief that in any event the trial court erred in not submitting to the jury the question of plaintiff’s being carried gratuitously. This complaint is not argued, nor the ground upon which it is based stated, in appellant’s brief. We cannot say that this issue should have been submitted to the jury unless we decide either that the jury (a) had a right to discredit plaintiff’s testimony, or (6) that they had aright to infer from that testimony that he was being carried gratuitously. Neither of these questions are argued or even suggested in appellant’s brief. Neither are they argued in the brief of appellee. Under these circumstances, is it our duty to look through the record and decide them ? If it is, and if in consequence we reverse the judgment, we reverse it on a proposition upon which the appellee had no opportunity of being heard. We must therefore decline to consider them. It was appellant’s duty to state in. his brief the “questions involved” (Supreme Court Rule 40), and “to point out at least in what it is claimed the error consists.” Mason v. Partrick, 100 Mich. 577 .

It is also contended that error was committed in per *265 mitting plaintiff when he was recalled, after defendant rested, to change his testimony in the manner he did. This contention rests upon the assumption that this change was radical. Under our view of his former testimony, as already appears, it was not radical. It amounted to this, that the parties expressly agreed to a provision which would otherwise be implied. We do not think the ruling under consideration erroneous.

We do not consider the proposition — elaborately and ably argued in appellant’s brief — that a carrier of passengers may lawfully contract that, it shall not be liable for the negligent injury of a passenger carried gratuitously. As shown by this opinion, that proposition is not presented in this case, and it would therefore be improper for us to decide it.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.