139 Ala. 389 | Ala. | 1903
Will Patty, a witness for the jilain-tiff, testified that he had run on the defendant’s road as a. conductor and motonnan for over three years, up to February, 1901, and that the company were still using the same kind of cars they did when he was on the road. The evidence tended to show that, the accident by which the plaintiff was injured, occurred from tyro cars becoming uncoupled. The witness had stated fully the coupling apparatus of the cars; the bars used for the purpose, where they were attached to the cars and how; the kind of pin used for the purpose; the draw heads of the cars, and the dangers connected with the manner of their coupling. He was asked, when testifying as a witness: “How often in your experience and operation of those cars, did they become uncoupled or break loose on account of this peculiar colliding that you speak about?” Tin1 defendant objected to the question, because the evidence called for was incompetent and irrelevant. There was no error in overruling the objection. While he did not see the accident, nor the car on which the plaintiff was riding at the time, he did testify, that the company were now using the same cars that were in use when he was on the road, and that he had ridden on one of them just before this trial. In argument, the only ground of irrelevancy insisted on is, that he did not, see the coupling in use at the timA of the accident. But that was of little importance, if tlm evidence tended to show, as it did,
2. The main insistence for error is, that the court refused to give the general charge for defendant. This proceeds upon the ground as argued, that the relation of passenger and carrier was not established, in that there ivas no contract, express or implied, upon which such a relation existed; that the plaintiff got on the car and rode some four hundred feet, and did not see the conductor, nor did the conductor see him, and he had not paid or been called on for his fare, up to the time he was hurt. It was not necessary for plaintiff to have paid his fare, to become a passenger. — Hutchinson on (harriers, § 3(>5. The train consisting of two cars, was going into Birmingham, and, as the evidence tended, to show, was so crowded, inside the cars, as not to admit of others entering them; but still, it continued to stop at each of the street stopping places, and continued to allow others, without any protest or dissent, to get on and stand where they could, — on steps, in the vestibule, and, as with plaintiff and others with him, on the projection outside of the vestibule. Under such conditions, it cannot be said as a matter of law that plaintiff was not a passenger. ITe had gotten on the car in good faith, with the implied invitation or consent of the company’s agent, to take passage with the intention of paying fare, as the proof tends to show, and this was all that was necessary to establish the relation. — 23 Am. & Eng. Ency. Law (1st ed.) 1004; 5 Ib., (2d ed.), 492; Hutchinson on Carriers, supra; Cooley on Torts, p. 770; Patterson’s Railway Accident Law, § 218; N. B. R. Co. v. Liddicoat, 99 Ala. 549.
3. It is contended that the plaintiff, in taking his place where be did on the car, assumed a dangerous position thereon, and, as a matter of law, should be held to have contributed proximately to his own injury. It can not be denied that the evidence, which was without contradiction, points in that direction. But a sufficient reply is, that a passenger does not lose his character as such, and the care the company owes him, to transport him safely, by negligently assuming a dangerous position on the train. The company Svould not be excused
Mr. Beach, to the same effect, says: “It is an equally Avell established rule that the mere fact of riding on the platform of a street car is not conclusive evidence of negligence. ‘The seats inside are not the only places,’ said the Supreme Judicial Court of Massachusetts, ‘where the managers expect passengers to 'remain, but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and then to stand on the platform until they are full, and to continue to stop and receive them after there is no place to stand except on the steps of the platform. Neither the officers of these corporations, nor the managers, nor the traveling public, seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained on account, of its danger. 'There is, therefore, no basis upon which the court can decide upon the evidence reported that the plaintiff did not use ordinary
4. The same thing may be said touching the alleged negligence, of defendant, in having the cars properly coupled. “The law imposes; upon common carriers the duty of exercising the highest degree of care, skill and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence resulting in injury to persons sustaining that relation to them.” — A. G. S. R. Co. v. Hill, 93 Ala. 520. Moreover, “if injury is suffered at the hands of a common carrier, the law, in the absence of all explanation, presumes it was the result of the carrier’s fault, and casts on the latter the burden of overturning the presumption, or of showing that diligence and a careful observance of duty could not have prevented the injury.” — L. & N. R. Co. v. Jones, 83 Ala. 376; Ga. P. R. Co. v. Love, 91 Ala. 434.
In this case the evidence tends to show that plaintiff’s injury resulted from negligence on the part 'of defendant’s agent, in not providing a safer coupling of the two cars, in consequence of which, the trailer, or rear car, ran against or mounted the rear of the front car and caught and injured the plaintiff’s foot, while standing-on the projection of the latter car. The question of negligence in failing to provide a securer or safer coupling was one, like that of plaintiff’s alleged contributory negligence, proper for the determination of the jury, under proper instructions.
5. From what has been said, it will appear that charges 4, 10 and 15, the only ones insisted on as erroneous, were properly refused.
6. Charge 5 instructed, that if the jury believe from the evidence that the plaintiff was guilty of negligence which proximately contributed, even in the slightest degree, to his injury, they must return a verdict for the
The court erred in refusing this charge, and for that error the judgment below is reversed.
Reversed and remanded.
