
    MANUEL MARTINEZ v. AMERICAN RAILROAD OF PORTO RICO.
    San Juan,
    Law,
    No. 1290.
    RidiNG on Platform.
    Jury — Discussion.
    1. It is not necessary for the jury, after retirement, to spend any time in.discussion if they are of one mind upon retirement. .
    Note. — On riding on platform of railroad car as negligence, see notes in 29 L.R.A.(N.S.) 325, and L.R.A.1915B, 166.
    On liability for injury to passenger on platform of vestibuled train, sea notes in 22 L.R.A. (N.S.) 313, 27 L.R.A. (N.S.) 253.
    
      Negligence — Management of a Train.
    2. In a suit charging negligence in the management of a train, evidence cannot be given that the platform was crowded.
    Negligence — Proof in Rebuttal.
    3. Reasonable inferences may be made in favor of an injured party to fill out details where there is a substantial defense, but this does not avoid the,necessity of making out any defense at ail.
    Standing on Platform — Charge.
    4. If the plaintiff does not allege good reason for standing upon ' the platform, this may be considered as contributory negligence.
    Practice — Presentation of Law.
    •5. Where the court is not satisfied that the law has been fully presented upon a trial, it may award a new trial upon payment of costs, although there has been no error committed.
    Opinion filed January 30, 1920.
    
      Mr. Leopoldo Feliu for plaintiff.
    
      Mr. F. H. Dexier for defendant.
   HamxltoN, Judge,

delivered tbe following opinion:

Tbe complaint in this case is founded upon tbe negligence of tbe defendant in tbe management of 'tbe train upon wbieb plaintiff was traveling. Tbe evidence showed that tbe plaintiff at the time of tbe injury was riding upon tbe platform. The jury found a verdict for tbe defendant, and the plaintiff now seeks a new trial. ,

1. Amongst other grounds be sets out that tbe jury brought in a verdict in something like five minutes, and contends that •this shows extraordinary baste, evidencing prejudice. Tbe argument seems to go upon tbe basis tbat it is tbe duty of a jury, after a case is submitted to them, to discuss tbe evidence and charge of court in all their bearings, and then come to a verdict. This is not tbe law. ' Tbe jury should go over tbe case carefully when they differ, and try to reconcile opposing views. If, however, they all go into tbe jury room with one mind after bearing all tbe evidence and tbe charge of court, it is difficult to sec what there would be for tbe jury, to discuss. Cases are by no means unknown where a jury comes to a verdict without leaving tbe box. There is nothing in this ground for tbe motion.

2. It is contended that’ error was committed by tbe court in refusing to permit evidence tbat tbe car was crowded, both upon tbe plaintiff’s main case and upon rebuttal of the defendant’s evidence tbat tbe plaintiff was riding on tbe platform. In other words, it is contended under tbe pleadings of this case tbat tbe ■plaintiff should have been permitted to prove that tbe car was crowded, with tbe view of thereby showing why be went out upon tbe platform.

Tbe principle upon which tbe court acted in tbe exclusion was tbat tbe suit was for “negligence in the management of tbe train.” The fact, if proved, tbat tbe car was crowded, was no proof of negligence in tbe management of tbe train. Tbe argument is tbat tbe averment of negligence in tbe management of tbe train is a broad averment, and should admit evidence of anything tbat happened from the time tbe train left its place of departure to tbe place of the accident, tbe defendant, if be thought tbe allegation too broad, having tbe right to make a motion to have tbe complaint made more specific.

It is undoubtedly true tbat, upon a general allegation of negligence, the plaintiff is not to be confined in bis evidence to any particular acts of negligence. Any fact tending to show actionable negligence is admissible, although not mentioned in the pleadings. 10 C. J. § 1421. In the case at bar, however, there was not such a general allegation of negligence; the negligence averred was to the management of the train. This certainly meant something. The natural meaning would be that the train was run too fast, or so roughly as to throw passengers down, or stopped so quickly as to throw them against the seats, or, in this case, out of the door against the platform railing, or something of similar nature. It could not by any reasonable construction be extended to the fact" that there were so many people in a car that some of them had to go out on the platform,, which seems to have been the object in tendering the evidence in. question. In other words, the defendant was called into court to defend against one allegation, and it was sought, when that could not be proved, to prove a different set of facts. It is the very object of any system of pleading to prevent such practice.

3. It is said, however, that the plaintiff should have been permitted to make this proof in rebuttal. In the Federal practice contributory negligence has been held to be an affirmative defense (O’Hara v. Central R. Co. 106 C. C. A. 177, 183 Fed. 739), and accordingly when the defendant proved the plaintiff was riding upon the platform it is argued that it should have been permitted to the plaintiff to explain why he was riding-upon the platform, by showing that it was so crowded in the car that he could not remain there. This is not within the principle that reasonable inferences are to be in-favor of the injured party in cases of contributory negligence. Wabash, St. L. & P. R. Co. v. Central Trust Co. 23 Fed. 738, 740, 741. That may be applicable to fill out details where the defense is already substantially made out; it cannot be invoked to avoid the necessity of making out any defense at all. It is quite true that a passenger might sometimes be justified in taking to the platform if he could not get a place inside, or could not stand there without great discomfort. 2 Shearm. & Redf. Neg. 5th ed. § 523; Brice v. Southern R. Co. 85 S. C. 216, 21 L.R.A.(N.S.) 768, 771, 67 S. E. 243. If the crowded condition of the car is to be shown in a case, this condition must be proved to have had some connection with the injury. Cary v. Los Angeles R. Co. 157 Cal. 599, 27 L.R.A. (N.S.) 764, 108 Pac. 682, 21 Ann. Cas. 1329, 3 N. C. C. A. 114 (street railway case). Some cases lay stress upon the speed of the train as determining whether it is contributory negligence or not to stand upon the platform. Worthington v. Central Vermont R. Co. 64 Vt. 107, 15 L.R.A. 326, 23 Atl. 590, 10 Am. Neg. Cas. 331; Norvell v. Kanawha & M. R. Co. 67 W. Va. 467, 29 L.R.A.(N.S.) 325, 328, 68 S. E. 288. The contention is that here the train was shown to be going at only 10 kilometers an hour. The court does not think that the speed is a conclusive element. The cars used by the American Eailroad Company of Porto Eico may not be up to the standard of those in the states, but there is upon the doors of same a warning not to ride upon the platform, and the court cannot hold that this was put there for no purpose.

4. It is contended that the court committed error in giving general instruction that standing upon the platform is contributory negligence. The charges in question were given at the request of the defendant, and would seem to be proper in view of the evidence which was before the jury; that is to say, when there was no evidence of any good reason why the plaintiff was upon the platform. This situation again goes back to the fact that the plaintiff had not alleged any good reason in his complaint which expressly denied contributory negligence. The instruction in question might not be true under all circumstances as an abstract principle of law, hut instructions must be taken in connection with the facts as proved in the particular case.

5. The court, however, is not satisfied as to whether the plaintiff should or should not have been allowed to testify to the crowded state of the ear, when in point of fact he denied that he did go upon the platform, and at most testified that he was standing in the doorway. The law upon the subject was certainly not presented to the court with any fulness at the time. The verdict under all these circumstances is hardly one of which the plaintiff can complain; but the court is not sure that the case has been properly presented. It will therefore give the plaintiff an opportunity to amend his pleadings if he sees proper, or otherwise have the advantage of a new trial of the facts, provided within two weeks he pays the costs of the first trial. A new trial is granted provided this is done; otherwise the verdict' will stand and judgment will be entered.

It is so ordered.  