ern R. Co. v. Lindsay, 201 Fed. 836 [120 C. C. A. 166]; Louisville, etc., R. Co. v. Wene, 202 Fed. 887 [121 C. C. A. 245]; Pennsylvania R. Co. v. Goughnour, 208 Fed. 961 [126 C. C. A. 39].

"Under the principles of law stated in these cases, especially the last two, we think it cannot be said, as a matter of law, that there was no negligence shown on the part of Mr. Seeburger."

Under plaintiff's theory of the case, it was the duty of Walsh, who was working in the field, to open the knuckles on the cars and keep them from drifting back on the lead; and if, through the carelessness and dereliction of Jones, switch No. 4 was not turned, and the cars were shunted in on that track, and as a result Walsh met his death, we cannot say, as a matter of law, that such negligence of Jones was not the proximate cause of the injury. The crucial question in this case seems to be: Who failed to turn switch No. 4? And upon this record that became a question of fact for the jury.

With reference to the contributory negligence of Walsh, the trial court charged the jury as follows:

"As I have already intimated, if you find that defendant is guilty of negligence, as I have explained, then you will determine whether or not the plaintiff's decedent (that is, Edward M. Walsh) is guilty of contributory negligence (that is, whether plaintiff's decedent is guilty of any negligence that contributed to his injury). If he was guilty of any negligence that contributed or helped to cause the injury, that is what is known as contributory negligence, and contributory negligence is a want of ordinary care on the part of the person injured by the actionable negligence of another concurring with the negligence and contributing to the injury as a producing cause.

"The act under which this action is brought, as I have already read to you, says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.

"The act under which this action is brought says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.

"If you find that the plaintiff is entitled to recover, and that the decedent was not guilty of contributory negligence which contributed in any degree to his injury, then the plaintiff would be entitled to recover full damages (that is, all damages resulting from the negligent acts of the defendant).

"If you find that the decedent, Edward M. Walsh, was guilty of contributory negligence, then the plaintiff will not be entitled to full damages, but you will have to deduct from the plaintiff's full damages such damages as you may find have been suffered by reason of decedent's own negligence (that is, if you find that the plaintiff is entitled to damages, you will have to estimate first how much damages the plaintiff has suffered, and then, if you find that the decedent was guilty of some negligence, you will subtract from the entire damages such proportion as you find was caused on account of the decedent's own negligence)."

We are of the opinion that this properly submitted the question of plaintiff's decedent's contributory negligence to the jury, and that there was no error in this regard.

After the argument of the case in this court, it was suggested to counsel that the court would be pleased to hear from them as to whether it can be said that the negligence of a fellow-servant is one of the risks that the employee assumes, in view of the language of the United States Supreme Court in the case of Southern R. Co. v. Crockett, reported in 234 U. S. 725, 34 Sup. Ct. 897, that:

"By the employers' liability act the defense of assumption of risk remains as at common law, saving in the cases mentioned in section 4; that is to say, 'any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of the employee." "

Counsel for appellee, we think very properly, called our attention to the fact that this question here suggested was not brought to the attention of the court below in any way, was not considered or ruled upon by that court; that no assignments of error are before us with relation to it, nor was it discussed by counsel in their original briefs; and that therefore the question is not here open for consideration or review. Our attention is challenged to the case of Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815), in which Mr. Justice CAMPBELL, in referring to the right of this court to consider questions not raised by assignments of error and exceptions, said:

"We have no right, under bill of exceptions, to review anything but such action of the court itself as is excepted to. The power of this court to review the action in circuit courts on trials is one derived entirely from the statute and common-law practice on bills of exceptions. The law has left all things not legitimately belonging to exceptions to be managed by the circuit courts in furtherance of their own authority. We have no more power to review what they have not passed upon than to exercise original jurisdiction in civil matters. It would be going entirely beyond our authority to notice what has not been ruled on and excepted to below."

See, also, Wilkinson v. Earl, 39 Mich. 626; Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721); Marshall v. Accident Ass'n, 151 Mich. 245 (114 N. W. 1028); Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

For this reason, therefore, we must decline to pass upon the question above suggested.

We have examined such other assignments of error as are discussed by counsel in their briefs, and those not so discussed must be deemed to have been waived. Supreme Court Rule No. 40; People v. Cole, 139 Mich. 312 (102 N. W. 856); Nissly v. Railway Co., 168 Mich. 676, at page 682 (131 N. W.

145, 135 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). Those that were commented upon in the briefs and are not herein specifically referred to we deem without merit.

We find no error in the record, and judgment is therefore affirmed.

BROOKE, C. J., and MCALVAY, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred. MOORE, J., did not sit.

MCCLOY v. VAUGHAN.

1. LIBEL AND SLANDER-TRIAL-FAILURE TO INSTRUCT-PLEADING. Where the slanderous words charged in plaintiff's declaration were not shown to have been uttered as averred, and the language proved to have been used differed materially from the statements set forth in the declaration, the defendant was entitled to have his requests for instructions to the jury given covering the point that there was no evidence in support of certain of the allegations of plaintiff.

2. SAME-EVIDENCE-WITNESSES-BIAS-INTEREST.

Plaintiff's attorneys, who went upon the stand as witnesses to meet the testimony of one of defendant's witnesses who claimed to have been offered money to testify in favor of plaintiff, were improperly excused by the trial court from answering interrogatories as to their interest in the action and the amount of their fees, and whether they had the case on a contingent basis: bias or interest of the witness is always a proper subject of inquiry.

3. SAME-EVIDENCE-REPUTATION AS TO WEALTH FINANCIAL

STANDING.

The actual wealth of the defendant in a slander case is

not competent as the subject of testimony, although his reputed financial standing may be material; and where the court failed to exclude from the consideration of the jury evidence offered tending to show the actual wealth or financial ability of the defendant, in so clear a manner that the jury would understand the instructions, it was reversible error to refuse defendant's requests to the effect that there was no testimony in the case as to his reputed financial standing.

4. SAME-REPETITION OF SLANDER EVIDENCE.

It was not necessary for plaintiff to prove that a repetition of the slander claimed to have taken place was in the exact words of the original charge: proof of the repetition is intended to bear upon the question of malice in uttering slanderous language. If the statements are substantially similar, calculated to produce the same impression, evidence of such repetition is admissible.

Error to Wayne; Van Zile, J. Submitted January 22, 1915. (Docket No. 91.) Decided March 18, 1915.

Case by Flora McCloy against Jay W. Vaughan for slander. Judgment for plaintiff. Defendant brings error. Reversed.

Allan H. Frazer, for appellant.

McHugh, Gallagher, O'Neil & McGann, for appellee.

STONE, J. This is an action of slander against the defendant, who had been the landlord of the plaintiff, for damages for certain statements which it is alleged defendant made of and concerning the plaintiff, on the 10th day of August, 1910, about the time the plaintiff vacated the apartments known as as the Vaughan apartments, which she had leased from defendant. The evidence is undisputed that the defendant was the owner of an apartment house in the city of Detroit, which he leased, under a chattel mortgage lease, to the plaintiff, beginning on the 1st day of April, 1910, for a period of five years. It appeared that when the plaintiff rented the Vaughan apart