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At the close of the testimony the defendant made a motion for a directed verdict in its behalf, which was denied, and exception duly taken, and the case was submitted by the trial court to the jury upon the question of damages alone. The jury returned a verdict for the plaintiff, upon which judgment was entered.
By appropriate assignments of error the following points are urged by defendant:
(1) The court should have directed a verdict for defendant:
(a) By the terms of the contract of employment of plaintiff's decedent, he assumed the risk of all accidents and injuries such as the one in question, and released the defendant herein from all claim therefor.
(b) This contract is valid, and may be enforced by the defendant in this case.
(2) If the court refused to direct a verdict for the defendant, then the court should have submitted to the jury the question as to whether or not the contract between Clark and the United States Express Company was binding on plaintiff's decedent in the case at bar.
It is also claimed that, if the court refused to direct a verdict for defendant, it should have submitted to the jury the question whether the application for employment, by plaintiff's decedent to the United States Express Company, covered and contemplated the performance of the services which he was rendering at the time of the accident. It is the claim of the plaintiff that in the application made by plaintiff's decedent in 1906, the parties did not contemplate Clark's employment as an express messenger; that Clark sought employment as a driver for the express company at Jackson, Mich. It is urged by plaintiff that the defendant failed to maintain its plea, or to show what it undertook to show under its notice, that Clark made application for employment by the express company as an "agent or express messenger."
We are satisfied that the application and the contract of employment should be treated as one contract, signed at one and the same time by the party seeking employment, and must be understood and construed with reference to the particular work or line of employment that the applicant desired. The words in the application, “I understand that I may be required to render services for the company on or about the railroad, stage, and steamboat lines used by the company for forwarding property," were contained in the printed form of application, and were made to fit any and every locality, and, in this case, should be understood, in the light of the surrounding circumstances, as referring to the job which Clark was applying for at Jackson, Mich. So far as he might be required under his employment as driver at Jackson, Mich., to render services about the railroad, stage, or steamboat which the company made use of, this clause had application. It may be said, as a matter of common knowledge, that the driver for an express company would have to do more or less work on or about the lines of the company used for transportation, and, if it made use of no stage or steamboat line at Jackson, Mich., it did make use of the street railway, and the words "stage and steamboat lines" might be treated as merely surplusage. The wording of the contract is also significant in this respect, and bears out the contention of the plaintiff that it has no reference whatever to the work of an express messenger, or to anything but the job specified, to wit, “driver at Jackson, Michigan.” It reads that:
“The United States Express Company hires the applicant above named as driver at Jackson, Michigan, and to perform such other services as may be directed from time to time.”
Whatever services he might be directed from time to time to perform by the terms of the contract, it is urged, were to be performed in connection with his work as driver at Jackson, Mich., and the rate of wages was fixed at $45 per month for this service. He was not a driver at Jackson, Mich., at the time he met with his injury, and had not been for years. The agent of the express company at Jackson, Mich., testified on direct examination as follows:
"This application was made before Mr. Clark went to work, and signed by him and filed with me.
“Q. Was any application or any subsequent—any subsequent application or contract or agreement ever made with Mr. Clark up to the time of his death?
“A. No, sir. On cross-examination the same witness testified:
"I could not say positively how long Mr. Clark worked as driver. He went into our employ at that time as driver. I presume he worked as driver for two years; I could not say positively; driver about the city of Jackson. After that he was appointed messenger for the company.
"Q. Did he act as shipping clerk for a time?
"A. In my office at Jackson. I do not recall how long he worked as waybill clerk.
Mr. Clark as waybill clerk received a salary of $55 a month; as messenger he was getting $60 a month.”
In construing this contract of employment it is a familiar rule that the intention of the parties should govern. This intention must, however, be collected from the words used in the instrument, and not from matters dehors the writing. The entire instrument should be examined; the particular purpose for which it was executed should be kept in mind and given effect to, if it can be done, without adding to, or subtracting from, the words used by the parties. A release covers only such claims as were within the contemplation of the parties. Although there are general words in the application which might, if they stood alone, bear the
construction of a general release, these, we think, are limited and controlled by the recital of the specific employment, to wit, “driver at Jackson, Michigan,” to which the release was evidently intended to apply. The rule is that, where the words in the recital apply to a particular kind or class of employment, as in this case, that of "driver at Jackson, Michigan, and to perform such other services as may be directed from time to time from July 6, 1906," the general words will be limited and restricted by the words in the recital. Texas, etc., R. Co. v. Dashiell, 198 U. S. 521, 25 Sup. Ct. 737; Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14 (23 L. R. A. 581).
The burden of this defense is upon the defendant to show a release applicable to the employment in which the deceased was engaged at the time of his death.
It seems to be settled by the authorities that in order to exempt the carrier from liability, or to limit the extent of its liability for injury caused by its own negligence of any kind, the contract must expressly so provide. Black v. Transportation Co., 55 Wis. 319 (13 N. W. 244, 42 Am. Rep. 713).
In the opinion in that case the court, referring to New Jersey Steam Navigation Co. v. Bank, 6 How. (U. S.) 343, quotes the following language:
“ 'The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.' This rule is approved by the court of appeals in New York, notwithstanding the fact that that court has gone further than most of the other courts of the country in upholding contracts exempting carriers from liability for the negligence of their servants, when such exemption has been clearly and expressly stipulated for. See Westcott v. Fargo, 61 N. Y. 542 (19 Am. Rep. 300).”
In Kenney v. Railroad Co., 125 N. Y. 422 (26 N. E. 626), the court of appeals of New York held that general words in the contract of a common carrier limiting its responsibility will not be construed as exempting it from liability for negligence, when they are capable of other construction. Speaking of the contract in that case, the court, on page 425 of 125 N. Y. (on page 627 of 26 N. E.), uses the following language:
“Our decision, however, is placed upon the ground that this contract does not in unmistakable language provide for an exemption from liability for the negligence of the defendant's employees. The rule is firmly established in this State that a common carrier may contract for immunity from its negligence, or that of its agents, but that, to accomplish that object, the contract must be so expressed, and it must not be left to a presumption from the language. Con siderations based upon public policy and the nature of the carrier's undertaking influence the application of the rule and forbid its operation, except where the carrier's immunity from the consequences of negligence is read in the agreement ipsissimis verbis. The doctrine of such contracts was stated by this court in the case of Perkins v. Railroad, 24 N. Y. 196, 206 (82 Am. Dec. 282). It was reiterated in the opinion of Judge Allen in Blair v. Railroad Co., 66 N. Y. 313, 318 (23 Am. Rep. 55), and in Mynard v. Railroad Co., 71 N. Y. 180 (27 Am. Rep. 28), Church, C. J., reviewing the question at some length, considered the prior decisions of this court and referred to certain decisions in the United States Supreme Court which held a different doctrine as to such agreements. In recognizing the right of the carrier to contract for its immunity from the results of negligence, he stated the general rule to be that such contracts must be expressed in unequivocal terms. This decision was followed as being decisive of the question in the later decisions in Holsapple v. Railroad Co., 86 N. Y. 275;