Upham v. Detroit City Ry. Co.

• Decision Date: 27 February 1891
• Court: Michigan Supreme Court
• Parties: UPHAM v. DETROIT CITY RY. CO.

48 N.W. 199

85 Mich. 12

UPHAM v. DETROIT CITY RY. CO.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Action by Charles E. Upham against the Detroit City Railway Company. There was a verdict for defendant, and plaintiff brings error.

John G. Hawley, for appellant.

Sidney T. Miller and Brennan &amp Donnelly, for appellee.

GRANT J.

Plaintiff was injured while riding upon one of the defendant's cars, under the following circumstances: On September 17, 1890, in the evening, plaintiff, with his wife and children and some friends, had returned by boat from the exposition grounds, landing at the foot of Woodward avenue. A street-car was standing there, and many passengers from the boat rushed for the car. Plaintiff and his party went to the front of the car. He entered with the ladies and children of his party, while his friend Mr. Metcalf remained upon the front platform. Some of them secured seats, and the others stood up. After providing for them as well as he could, he returned to the front platform. The car was drawn by horses. Shortly after the car started it struck a switch, and plaintiff, who was standing with his back against the door, was thrown to the pavement, and severely injured. Plaintiff brought this suit to recover damages, alleging that the defendant was guilty of negligence, in that it drove and propelled the car, without any notice or warning to plaintiff, against and around said switch. Upon the conclusion of the testimony defendant's counsel requested the court to instruct the jury that there could be no recovery by plaintiff. This the court declined to do, but said the cause "would be submitted to the jury with the instruction that, if plaintiff could have remained in the car, he could not recover; but if it was so full that he could not get a place to go to in the car, then he could recover; and if there were room enough for him to remain in the car, when he went in, it was his duty to remain." After the judge had announced his conclusion upon the law, neither of the counsel desired to make any argument to the jury. The court thereupon instructed the jury, and in closing said to them: "The question for you to decide is simply this: When he went into the car, could he have remained in there? That is to say, was there room enough for him to remain there without going outside? If there were room enough to remain there, and he went outside voluntarily, then he cannot recover. If you should find that there was not room enough to remain there; that the car was full; that he could not stay there; that he was obliged to stand outside to get carriage,-then, gentlemen, you are to consider the damages he has suffered, and award him damages for loss of services, physician's bill, and for the injury that has befallen him." Under these instructions, the jury found a verdict of no cause of action.

The question of fact submitted to the jury has been by them decided against the plaintiff. The jury could not well have found otherwise, for the plaintiff's own witnesses testified that there was plenty of standing room inside. Mrs. Metcalf testified that "there was no difficulty about persons standing up inside the car, if they desired to; that there was room enough, if they preferred to stand inside to outside." Miss Mary Metcalf testified that there was plenty of standing room inside when plaintiff went out. The car was supplied with straps for passengers to take hold of when compelled to stand up. We must therefore determine the defendant's liability upon the fact found by the jury that plaintiff voluntarily left the car when there was room for him to ride within it, and voluntarily stood upon the platform.

Is the company liable under such circumstances for negligently driving its car? Defendant's counsel assert that plaintiff left a place of safety inside the car, and voluntarily chose one of danger upon the platform, and that as his injury was due in part to the fact that he voluntarily took that position, he cannot recover; and that he took an unnecessary risk is evidenced by the fact that no one who was standing within the car was injured. They also assert that the law recognizes but two excuses for leaving a place of...