By authority of its charter, the city of Detroit maintains a zoological park. Within the park, the city operates a miniature railroad, used to transport visitors to the various points of interest. Admission to the park is free, but the fare on the miniature railroad is five cents. The maintenance of the park is an expense to the city, but the operation of the railroad is profitable, although such profit is offset by the larger expense of maintaining the park.
Plaintiff, a visitor to the park, boarded the train, after paying her fare, and was transported to one of the exhibits within the grounds. The train stopped, and as plaintiff was stepping off the car, the engine jerked, and plaintiff was thrown to the platform and severely injured. Plaintiff sued the city for negligence and had verdict from a jury on which judgment was entered. Defendant appeals, *Page 163 claiming that plaintiff did not sustain the burden of proof necessary to establish her case, that the court should have directed a verdict on the ground that plaintiff did not answer material allegations in defendant's answer, which must be held to be admitted, and that the city is not liable for negligence because, at the time of the accident, it was operating the railroad in a governmental capacity.
The testimony was in conflict. If the jury believed the plaintiff, the accident was the result of negligence of the employee of the city in charge of the engine. The jury is the judge of the credibility of the witnesses, and unless its verdict is against the weight of the evidence, it will not be disturbed on review. There was evidence to sustain the verdict.
We are of the opinion that there is no merit as to the claim of error in the failure of the court to direct a verdict on the ground that plaintiff did not deny material allegations in defendant's answer, which therefore must be considered as admitted and entitling defendant to a verdict. No motion to direct a verdict was made upon these grounds. There was evidence upon which the case could go to the jury. The claim now asserted was not presented to the trial court and therefore cannot be raised on review.
With regard to the liability for negligence of its employee, a similar question arose before this court in Foss v. City ofLansing, 237 Mich. 633 (52 A.L.R. 185). There, the municipality was operating trucks in the collection of garbage. For such service the city made a charge, and used the garbage to feed hogs, from which a profit resulted. Plaintiff was injured by one of the trucks and sued the city, securing a judgment. On appeal, the judgment was affirmed, *Page 164 and in passing upon the question of the liability of the city for negligence, this court said:
"Whatever the holdings may be elsewhere, we are of the opinion that the ruling in Michigan is that, if a municipality is engaged in a governmental work with an incidental profit, it is liable the same as a private corporation would be."
Defendant, however, relies upon Johnson v. Board of CountyRoad Commissioners of Ontonagon County, 253 Mich. 465, where defendant board had entered into a contract with the State highway commissioner, by virtue of statutory provisions, to maintain highways, for a certain remuneration to be paid by the commissioner. In that case, as stated by the court (page 469):
"This contract in several particulars is decidedly unlike those usually consummated with independent contractors. It requires the defendant herein to 'appoint a superintendent of maintenance satisfactory to the party of the first part, who shall * * * perform said work at the time and in the manner specified by the party of the first part.' It also requires defendant to 'employ only workmen skilled in their various duties;' and, further, defendant agrees in this contract upon request of the State highway commissioner to discharge any person found to be incompetent or negligent in the performance of his work and not to reemploy such person except with the written consent of the State highway commissioner. Also the wages to be paid and the materials to be purchased are to be such as are agreed to by the State highway commissioner; and by his power of approval reserved in the contract the commissioner controls the type and number of units of equipment to be furnished by the defendant for this work. We think these features of the contract quite conclusively indicate that the defendant *Page 165 board of road commissioners is only a governmental agency in the hands of the State highway commissioner used in the discharge of certain governmental duties, i. e., the repair and maintenance of State highways. The 5.5 per cent. above actual cost allowed for 'overhead and supervision charge' may or may not result in a net profit. The contract clearly contemplates the keeping of books and the rendering of accounts as well as the employment of a superintendent. And it is obvious that defendant has a substantial investment in its equipment. Whether the fixed rentals cover income on investment and depreciation of equipment, as well as cost of maintenance and operation, the record does not disclose. Plaintiff's declaration alleges that defendant entered into this contract 'upon profitable consideration.' While authority to the contrary may be found, we think the burden of proving this allegation, which is essential to plaintiff's right of recovery, is upon plaintiff. City of Akron v. Butler, 108 Ohio St. 122 (140 N.E. 324). No proof was offered to sustainplaintiff's allegation of profit; and defendant's motion for a directed verdict at the close of the proofs should have been granted on the ground that the board of county road commissioners was engaged in the performance of a governmental function at the time and place of the accident."
The court, however, further said (and it is upon the following statement of law that defendant relies):
"On this phase of the case it may also be noted that municipal corporations and other governmental agencies when performing a purely governmental function do not lose their immunity from liability for its negligent performance merely because they derive an income therefrom, provided the income is only incidental to the main purpose of so functioning *Page 166 and aimed at covering the cost of the undertaking.Curran v. City of Boston, 151 Mass. 505 (24 N.E. 781, 8 L.R.A. 243, 21 Am. St. Rep. 465); Bolster v. City of Lawrence,225 Mass. 387 (114 N.E. 722, L.R.A. 1917 B, 1285); Bell v.City of Cincinnati, 80 Ohio St. 1 (88 N.E. 128, 23 L.R.A. [N. S.] 910). On the other hand, a municipality may be held to respond in damages for the negligent act of its agent or employee incident to a voluntary activity undertaken for its own profit and commercial in character."
But in spite of apparent variance, this case can not be considered to have overruled Foss v. City of Lansing, supra, as it only repeated the rule previously laid down before the FossCase in Gunther v. Board of County Road Commissioners ofCheboygan County, 225 Mich. 619, where it was held that a county performing maintenance work on a State highway in pursuance of a contract with the State highway commissioner, by its board of road commissioners, was performing a governmental function and was not liable for injury caused by the operation of a truck by one of its agents. Such a determination is not inconsistent with the Foss Case, for the maintenance of roads is peculiarly a governmental function. Commissioner of Highwaysof Township of Niles v. Martin, 4 Mich. 557 (69 Am. Dec. 333). See City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450); City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78). In Kilts v. Board of Supervisors of Kent County, 162 Mich. 646, it was held that the county was not liable to a laborer engaged in constructing a water system on a poor farm; but in Rowland v. Kalamazoo Superintendents of the Poor, 49 Mich. 553, liability of defendants was sustained for negligently operating a poor farm so *Page 167 that a fire spread to adjoining premises, such liability being predicated upon defendants' operation of the farm for pecuniary profit and benefit to the county.
In Hart v. City of Bridgport, 13 Blatchf. (U.S.C. C.) 289, it was said:
"The principal difficulty which courts have experienced has been in ascertaining, clearly and accurately, the line of demarcation between public governmental duties and private or corporate duties, and has not been in the determination of the question, whether, for a refusal to discharge public duties, the corporation was or was not liable. Public duties are, in general, those which are exercised by the State as a part of its sovereignty, for the benefit of the whole public, and the discharge of which is delegated or imposed by the State upon the municipal corporation. They are not exercised either by the State or the corporation for its own emolument or benefit, but for the benefit and protection of the entire population. Familiar examples of such governmental duties are the duty of preserving the peace, and the protection of property from wrongdoers, the construction of highways, the protection of health and the prevention of nuisances. The execution of these duties is undertaken by the government because there is a universal obligation resting upon the government to protect all its citizens, and because the prevention of crime, the preservation of health, and the construction of means of intercommunication are benefits in which the whole community is alike and equally interested."
It is our conclusion that while the city of Detroit was maintaining the zoological park in its purely governmental capacity, nevertheless in its operation of the miniature railroad, with a resultant profit therefrom, it was exercising a proprietary function; *Page 168 and was liable for negligence arising from such operation.
The judgment of the circuit court is affirmed, with costs to plaintiff.
SHARPE, POTTER, and CHANDLER, JJ., concurred with McALLISTER, J.