Highland Ave. & B.R. Co. v. Donovan

• Decision Date: 05 November 1891
• Citation: 10 So. 139,94 Ala. 299
• Court: Alabama Supreme Court
• Parties: HIGHLAND AVE. & B. R. CO. v. DONOVAN.

10 So. 139

94 Ala. 299

HIGHLAND AVE. & B. R. CO. v. DONOVAN.

Supreme Court of Alabama

November 5, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge. Affirmed.

Action by William Donovan against the Highland Avenue & Belt Railroad Company to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.

The bill in this case was filed by the appellee, William Donovan by his next friend, against the appellant corporation, and sought to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant or its employes. The defendant pleaded the general issue and contributory negligence, and issue was joined thereon. The plaintiff's evidence was that he was about 17 years old and that on the 30th of September, 1889, he got on a car of the defendant's at Avenue F and Twenty-Seventh street as a passenger, and a lady got on with him; that the rear platform of the car was crowded, and he had to get on the front platform; that on account of the crowd he was unable to enter the car by the rear platform, where he usually entered that there were several persons standing on the front platform, and there were some railings running about the front window, and he had his left hand on one of these, and in his other hand he had his school-books and his umbrella that he had but one leg; that, after he had gotten on, the conductor got on the same platform he was standing on, and pushed his way into the car through the persons who were standing on the platform; that the plaintiff looked into the car, and saw that the seats were crowded, and that the aisle between the seats was full of people standing; that he had to stay on the platform; that the seats ran along on both sides of the car, and the people were in the aisle holding on the straps; that the conductor collected his fare when he got on. The plaintiff further testified that he stood on the right-hand side of the car, there being two persons between him and the door; that at the corner of Avenue E and Twenty-Seventh street there was a curve to the left, which placed him on the outside of the curve as the car went around the curve; that, as the train moved around the curve, the other persons standing on the platform were shoved against him, breaking his hold, and he was thrown from the car, and had his ankle broken; that he had heard that the rules of the company prohibited persons from riding on the platform. There was a conflict in the evidence as to whether the car was filled or not; the evidence for the plaintiff tending to show that it was full on the inside, and the evidence for the defendant tending to show that there was ample standing-room inside of the car. The plaintiff, after testifying as to the inside of the car being crowded, was asked: "What appearance did it have as they were standing in that way?" The defendant objected to this question, but the court overruled the objection, and the defendant excepted. As to the appearance of the aisle the plaintiff said that "near the door it was crowded more than at the center there were people hanging on all along." Upon the introduction of all the evidence, the court, at the request of the plaintiff in writing, gave the following charge: "If the jury believe from the evidence that there was a reasonable necessity, either real or apparent, under the circumstances of the case; for the plaintiff to travel on the platform of the car, and that he made such effort to obtain accommodation inside the car as an ordinarily prudent man would under similar circumstances, then he would not be guilty of negligence by reason of standing or travelling on the platform." The defendant excepted to the giving of this charge by the court, and separately and severally excepted to the court's refusal to give each of the following written charges at its request: "(1) That there is no evidence that the rate of speed at which the cars were run around the curve at Twenty-Seventh street and Avenue E was dangerous or negligent. (2) That if the plaintiff with knowledge that the car was so, crowded that he could not get a seat, and could not get into the car, got onto the platform with knowledge that the rules of the company prohibited his standing there, then this would be negligence on his part which would defeat a recovery. (3) If the jury believe all the evidence, they should find a verdict for the defendant. (4) If the jury believe from the evidence that when the plaintiff boarded the car it was filled with passengers, and the platforms were also filled with passengers, and the plaintiff, when he got on the car, knew that he could not get a seat, and could not get into the car, then his getting on...