Opinion
Docket No. 23, Calendar No. 37,145.
Submitted June 6, 1933.
Decided August 29, 1933.
Appeal from Wayne; Richter (Theodore J.), J. Submitted June 6, 1933. (Docket No. 23, Calendar No. 37,145.) Decided August 29, 1933.
Case by Elizabeth Wojewoda, administratrix of the estate of Walentine Wojewoda, deceased, against City of Detroit, a municipal corporation, for injuries to plaintiff's decedent resulting in his death, alleged to be due to defendant's negligence. Directed verdict and judgment for defendant. Plaintiff appeals. Reversed, and new trial granted.
Dohany Dohany, for plaintiff.
William J. McBrearty, for defendant.
Plaintiff's decedent was killed in a collision between an automobile in which he was riding, driven by Cecil Hayes, and defendant's street car. The court held both drivers guilty of negligence and directed a verdict for defendant on the ground that decedent was a guest passenger not paying for his transportation and Hayes' negligence was imputed to him.
Hayes, John Hall, William Maitland, and decedent worked in the Michigan Central shops some miles from their homes. Hayes, Hall, and Maitland owned cars. They worked six nights per week. Decedent worked seven nights per week. Hayes, Hall, and Maitland had an arrangement by which each used his car in turn to convey the three to and from work. Decedent had an arrangement with each by which they transported him for $1 per week for six nights. Hayes, Hall, and Maitland did not have the same night off, and, on the seventh night, the one of those working transported decedent for 15 cents.
The arrangement was made in advance of the transportation. It was for a definite sum of money. Hayes testified that the payment by decedent was a method of contributing to the cost of the gasoline consumed, and was a matter of courtesy. But he also testified that there was no arrangement with decedent that the money was to be used for gasoline, and that the agreement for transportation was for a specific sum without regard to its use. If the payment was not by way of voluntary or spontaneous courtesy of a guest or co-operative contribution to the expense of the trip, the fact that the driver made the expense the basis of his computation of the charge would not prevent the carriage being for hire. Under the testimony, whether decedent was a passenger for hire was a question for the jury. Johnson v. Mack, 263 Mich. 10. If decedent was a passenger for hire, negligence of the driver was not imputable to him. Lachow v. Kimmich, 263 Mich. 1 (32 N.C.C.A. 579).
In view of the necessity for new trial, we express no opinion upon whether defendant was guilty of negligence as a matter of law.
Judgment reversed, with new trial, with costs to plaintiff.
McDONALD, C.J., and CLARK, POTTER, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred.