Alabama Great Southern R. Co. v. Gilbert

• Decision Date: 19 November 1912
• Citation: 6 Ala.App. 372,60 So. 542
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. GILBERT.
• Court: Alabama Court of Appeals

60 So. 542

6 Ala.App. 372

ALABAMA GREAT SOUTHERN R. CO. v. GILBERT.

Court of Appeals of Alabama

November 19, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by Willie Gilbert, pro ami, etc., against the Alabama Great Southern Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

A. G. & E. D. Smith, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

PER CURIAM.

This suit was brought by appellee, a minor, by his next friend against the appellant for damages for personal injuries received by him while he was a passenger on one of appellant's trains. In May, 1910, the appellant ran an excursion train from Birmingham, Ala., to Hull, Ala. The appellee was a passenger on said train, and on the return trip to Birmingham from Hull, and while standing on the steps of a platform or on the platform of one of the cars, fell from the train and received painful and permanent injuries. At the time appellee fell, the train was at a point between Tuscaloosa and Birmingham, and was running at a rate of speed of 30 or 35 miles an hour. The appellee testified as a witness in the case, and we quote that part of his testimony which gives his explanation of why he was on the platform and how he fell from the train: "That he got on at Hull and stood on the platform; that the platform was crowded, and there was no room in the car; that so far as he could see the car was crowded and people were standing up in it; that he tried to get in the car, but couldn't that he got on the train on the left-hand side going to Birmingham; that he was thrown off the train between Woodstock and Vance; that it seemed like they were running around a curve at the time he was thrown off; that at the time he was thrown off he was holding to the back of a man standing in front of him on the platform; that there was nothing else for him to hold onto, and he was standing too far in the middle of the platform; that he fell off on an embankment." No witness seems to have seen the appellee when he fell from the train, but the appellee introduced several witnesses whose testimony tended to show that all of the coaches composing the train were overcrowded, and that for this reason there were passengers standing in all the aisles and on all the platforms of the cars.

The evidence for appellant, on the contrary, tended to show that the train consisted of eight passenger coaches with 480 seats, and that there were 475 passengers on the train; that there was a baggage car also on the train, in which soft drinks were sold to the passengers, and that from 12 to 20 of the passengers rode in that car; that the conductor had five or six assistants; and that when not on duty they occupied seats in the rear half of the rear car, which was a compartment car, and in which compartment the evidence tends to show there were about 30 seats. The evidence was in dispute as to whether the passengers on the train were permitted to occupy the rear half of the compartment in which the conductor and his assistants had seats. Of course if there were only 475 passengers on the train and 480 seats, and if from 12 to 20 of the passengers rode in the baggage car where refreshments were being sold then there was necessarily a seat on the train for each passenger, provided the passengers were not denied the right to seats in the rear compartment of the rear coach. The evidence of appellee tended to show, as above stated, that all the seats (except those in the said rear compartment) were not only occupied, but that the aisles and platforms were also filled with passengers. The conditions existing on the train at the time of the accident, if the theory of appellee be the true one, can only be explained by the fact that there were either more than 475 passengers on the train or that the train contained either less than eight passenger coaches, or, if eight passenger coaches, then that the coaches contained considerably less than an average of 60 seats each. Indeed, one of appellee's witnesses testified that he "thought"--and by the word "thought" he evidently meant that it was his best recollection--the train had only six passenger coaches. On the contrary, if the theory of appellant is the correct one, then the appellee, at the time of his injury, was standing on the platform, not because of a lack of seats in the coaches, but because he preferred to stand on the platform. In fact, there was evidence from which the jury had a right to infer that the appellee left his seat and went upon the platform because a woman near him made some objection to his chewing tobacco and spitting near her in the coach. There was nothing out of the ordinary in the operation of the train between Hull and Birmingham, and the evidence discloses that appellee's injuries would not have occurred if he had not been on the platform at the time of his injuries.

1. "It is negligence, except under special circumstances, for a passenger to stand upon the platform of a car of a rapidly moving commercial railroad train. The inevitable lurching and jerking of a train so propelled makes the danger obvious to the ordinary understanding, and the negligence self-evident." Clanton v. Southern Ry. Co., 165 Ala. 485, 51 So. 616, 27 L. R. A. (N. S.) 253; Central of Ga. Ry. Co. v. Brown, 165 Ala. 493, 51 So. 565; McCaw v. Union Traction Co., 205 Pa. 271, 54 A. 893; Lehr v. Steinway & H. P. R. Co., 118 N.Y. 556, 23 N.E. 889. Necessity alone can warrant the assumption by a passenger of a position upon the platform of a rapidly moving commercial train. Mere considerations of personal comfort or choice cannot justify or excuse such action. Worthington v. Central Vt. R. R. Co., 64 Vt. 107, 23 A. 590, 15 L. R. A. 326. Was it necessary, then, for appellee, at the time of his injury, to be upon the platform?

The appellant, having contracted with him to carry him on one of its trains as a passenger from Hull to Birmingham, owed appellee the duty to furnish him with a reasonably safe place within which to ride. It owed him the duty to place him on a train containing sufficient seats for all the passengers on that train, and if it placed him on an overcrowded train, and his presence on the platform at the time of his injuries was due to that fact, then his mere presence upon the platform constitutes no defense to this action. Central of Ga. Ry. Co. v. Brown, supra; Willis v. Long Island R. R. Co., 34 N.Y. (Court of Appeals, Tiffany, 7) 670.

In this case, as the appellee was standing on the platform when the injury occurred and, according to his theory of the case, was thrown from the platform by that lurching or jerking of the train which is commonly known to be a necessary incident to a rapidly moving train, the burden of proof is upon appellee to show that his presence on the platform was due to the overcrowded condition of the train. Central of Ga. Ry. Co. v. Brown, supra; Chicago & West Indiana R. Co. v. Newell, 212 Ill. 332, 72 N.E. 416; Trumbull v. Donahue, 18 Colo. App. 460, 72 P. 684; Lake Shore & M. S. Ry. Co. v. Kelsey, 180 Ill. 530, 54 N.E. 608; Rolette v. Great N. Ry. Co., 91 Minn. 16, 97 N.W. 431, 1 Ann. Cas. 313.

2. In this case there were six counts to the complaint, but as the court charged the jury that they could not find if they believed the evidence, for the appellee under counts 1, 2, and 6, we have before us, for our consideration, only counts 3, 4, and 5. We will now consider the case as presented by count 3, which is a count for simple negligence.

In count 3 the appellee alleges that "his said injuries were proximately caused by the negligent manner in which the defendant [appellant here] operated the train upon which plaintiff [appellee here] was riding."

"Common or popular words are to be construed in their popular sense, common-law words according to their common-law meaning, and technical words according to their technical sense; as a general rule words are to be taken in their ordinary or popular sense unless it plainly appears that they were used in a different sense." Mobile Dry-Docks Co. v. City of Mobile, 146 Ala. 198, 40 So. 205, 3 L. R. A. (N. S.) 822, 9 Ann. Cas. 1229; 6 Mayfield's Dig. p. 943, § 16.

The words "operated the train," as used in count 3 evidently mean "controlled the movement and speed of the train," and we think it apparent that appellee in count 3 intended to charge, and does in fact charge, that his injuries were due to the negligent manner in which the servants of appellant controlled the movement and speed of the train on which he was traveling at the time of his injuries. We do not think that it can truthfully be said that appellee intended to charge, or that he did in fact charge, in said count that his injuries were due to the failure of appellant to perform its duty to him in furnishing him with a reasonably safe place within which to remain on said train while he was a passenger. It is evident that it is appellee's theory that he has a right to recover under this count, because, as his evidence tends to show, appellant so crowded its train with passengers that he could not obtain a seat in the train but had to stand on the platform along with other passengers, and that, this being the condition of the train, it was an act of negligence for appellant's servants to run its train at the rate of speed at which it was being run when appellee sustained his injuries. This view is strengthened by the allegations of the fourth and fifth counts, in which the...