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Nichols v. Railroad Co., 89 N. Y. 370, and Canfield v. Railroad Co., 93 N. Y. 532 [45 Am. Rep. 268]."
The defendant, upon the main question in this case, relies upon Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, and the numerous decisions that have followed that case. It is worthy of passing remark that in that case the court expressly found:
“That Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars.”
In other words, in that case (as was claimed by defendant in its notice in this case) the agreement related to the particular employment of express messenger, in which he was then engaged.
An examination of the other cases cited by defendant's counsel discloses that in every instance the application and agreement related to the particular employment of express messenger. It will not do to say that the contract included all or any employment in which the applicant might engage, but the rule is, as above shown, that the identical words of the contract must refer to the employment.
Where a waiver is claimed by the defendant, in order to prevail in such defense, it should be made to appear that the waiver is plainly expressed in the contract. We are unable to find any such waiver in the application and contract relied upon by the defendant in this case. Looking at the entire instrument, we cannot say for a certainty that the employment of express messenger was within the contemplation of the parties when the contract was made.
Neither can we agree with the position of defendant that there was involved here a question of fact which should have been submitted to the jury. In other words, we do not think that it was the duty of the trial court to submit to the jury the question whether the application for employment by plaintiff's decedent and the contract with the express company contemplated the performance of the services which he was rendering at the time of the accident. The question involved was one of law, and not of fact, and the jury should not have been permitted to speculate respecting it. We find no error in the ruling of the court upon this subject. This view of the case renders it unnecessary for us to consider the numerous other objections raised by the plaintiff to the validity of the waiver in the contract of employment.
We think the court reached the correct conclusion in the case, and, finding no reversible error in the record, the judgment of the circuit court is affirmed.
BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
PEOPLE V. MCGRAW.
1. MUNICIPAL CORPORATIONS - VIOLATION OF ORDINANCES CRIMINAL LAW—MOTOR VEHICLE LAW-TRAFFIC ORDINANCE—CITIES. In a prosecution for violating an ordinance of the city of
Detroit affecting motor vehicles, a complaint charging (in the first count) that respondent failed to drive his automobile in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles and (in the second count) that he wilfully failed to keep the front and rear lights lighted, as required by certain sections named of the compiled ordinances, was sufficient, on de murrer, and the ordinance was not beyond the authority
of the council, or invalid for the reason that it was prohibited by section 9 of Act No. 318, Pub. Acts 1909 (2 How.
Stat. [2d Ed.] $ 2495). 2. AUTOMOBILES - HIGHWAYS AND STREETS MUNICIPAL CORPORATIONS-DETROIT ORDINANCE. In a prosecution for violation of an ordinance of the city of
Detroit regulating traffic in its streets, such provisions of the ordinance as in any way contravene the general statute affecting motor vehicles, Act No. 318, Pub. Acts 1909, must be held invalid and void.
3. SAME-ORDINANCES—CONSTITUTIONAL LAW-DETROIT CHARTER.
In so far as section 9 of Act No. 318, Pub. Acts 1909; 2 How.
Stat. (2d Ed.) 8 2495, attempts to take away from cities all control of their highways and streets and from exercising reasonable control over streets of the municipality, the provisions of the statute are to that extent unconstitutional and void, being in conflict with the fundamental rule as to local legislation. Art. VII, § 28, Constitution.
Certiorari to recorder's court of Detroit; Connelly, J. Submitted November 23, 1914. (Docket No. 74.) Decided January 29, 1915.
Donald McGraw was complained against for violating an ordinance of the city of Detroit. Respondent's demurrer to the complaint was overruled. Affirmed.
Richard I. Lawson, for the people.
KUHN, J. The defendant is charged with the violation of certain ordinances with relation to traffic on the streets in the city of Detroit. Two complaints were made against him, and alleged the following:
“(1) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on the east side of Woodward avenue between Canfield and Forest avenues, one Donald McGraw did then and there unlawfully and wilfully, while driving an automobile upon said street, fail to drive the same in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles, to the evil example of all others in a like case offending, and contrary to the ordinances of said city, in such case made and provided. Section 2, chapter 55, page 102, of the Compiled Ordinances of the City of Detroit, for the year 1912.
“(2) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on Woodward avenue near Canfield, one Donald McGraw did then and there unlawfully and wilfully, while operating an automobile upon said street, during the time when the city lights on said street are lighted, fail to keep his front and rear lights lighted, to the evil example of all others in a like case offending, and contrary to the ordinances of such city in such case made and provided. Section 10, chapter 55, page 103, of the Compiled Ordinances of the City of Detroit, for the year 1912."1
The respondent, upon being served with a summons, appeared and demurred to each of the complaints. The learned recorder overruled the demurrers, and the case is here by certiorari. The various grounds for demurrer raised, as suggested by respondent's counsel, this question for determination:
“Has the city of Detroit, a municipal corporation, the power to enact the ordinance alleged to have been violated, in view of the provisions of section 9 of Act 318 of the Public Acts of 1909 ?”
Section 9 of Act No. 318 (2 How. Stat. [2d Ed.] $ 2495), which is entitled "An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles," reads as follows:
1 The sections referred to are as follows:
Sec. 2. Vehicles shall be driven in a careful manner and with due regard for the safety and convenience of pedestrians and of other vehicles. When one vehicle overtakes another, it shall pass to the left side of the overtaken vehicle and not pull over to the right until clear thereof.
Sec. 10. Lights on automobiles being operated or standing upon said streets, must be kept burning in front and rear during the time the city lights on the streets are lighted, and each of such automobiles shall carry the Michigan State license exposed in front and rear.
"SEC. 9. Local Ordinances Prohibited. Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule, or regulation requiring from any owner chauffeur to whom this act is applicable, any license or permit for the use of the public highways, or excluding any such owner or chauffeur from the free use of such public highways, or in any other way respecting motor vehicles or their speed upon or use of the public highways. No ordinance, rule or regulation contrary to the provisions of this act now in force or hereafter enacted shall have any effect: Provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire, and processions, assemblages or parades in the streets or public places, and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect: Provided further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted under proper restrictions for the safety of the public, and that said authorities may exclude motor vehicles from any cemetery or grounds used for the burial of the dead."
It is contended by counsel for the city, and was so held by the recorder, that that part of section 9 which forbids cities from exercising control of their highways with reference to motor vehicles is unconstitutional and void, as being in contravention of section 28 of article 8 of the present Constitution of the State, which reads as follows:
“SECTION 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise there