
    Birmingham Railway, Light & Power Co. v. Bynum.
    
      Action by Passenger against Street Railway Company to recover Barn ages for Personal Injuries.
    
    1. Action against street railway company by passenger for personal injuries; admissibility of evidence. — In an action by a passenger against a street railway to recover damages for personal injuries sustained while riding'upon one of the defendant’s cars, where the negligence complained of is that the car upon which the plaintiff was riding was not properly coupled to the rear car and the coupling appliance was not of the proper character and not in good condition, a witness who testified that he had run on defendant’s road as a conductor and motorman for several years up to within a few months of the time of the accident, and that he was familiar with the coupling appliance on the defendant’s cars, and there was evidence tending to show that the couplings in use on the car at the time of the accident complained of were the same lrind with which the witness was familiar, and about which he had testified, it is competent to ask such witness how often in his experience and operation of the defendant’s cars had they come uncoupled or broke loose on account of the particular coupling that the witness described.
    2. Common carrier; what, necessary to establish relation of passenger. — In order to become a passenger upon a common carrier, it is not necessary for the person to have paid his fare; but, if a person with the implied invitation or consent of the company’s agent gets on a car to take passage, having the intention to pay his fare, the relation of passenger and carrier is established.
    3. Action against street railivay company; when passenger not guilty of contributory negligence as matter of law. — Standing upon a platform of a car does not, in the absence of special circumstances, showing it to be such, constitute contributory negligence; and if the car in which the person takes passage is so crowded that there is no room except upon the platform or on the outer edge of the platform, and the conductor stops and allows a person to get on, and he stands upon the platform or the outer rim or projection of the platform, taking such position does not, as a matter of law, make such passenger guilty of contributory negligence; but the question is one to be submitted to the determination of a jury.
    4. Duty of carrier to passenger; when question of negligence should ■ be submitted to the jury. — While the law imposes upon common carriers the duty of exercising the highest degree of care, skill and diligence for the transportation of passengers, if, in an action by a passenger against a carrier, the evidence tends to show that the plaintiff’s injury resulted from negligence on the part of the defendant’s agent in not providing a safer coupling of the two cars, in consequence of which the rear car ran against the other car and caught and injured the plaintiff’s foot while he was standing on a projection of the front car, the question of negligence in failing to provide a safer and proper coupling is one for the determination of the jury under proper instructions from the court.
    5.' Contributory negligence; slight degree of such negligence en
      
      titles defendant to verdict. — In an action to recover damages for personal injuries, alleged to have been caused by the defendant’s negligence, if the plaintiff is guilty of negligence which proximately contributed, even in the slightest degree to his injury, he can not recover; and a charge which so instructs the jury should be given at the request of the defendant.
    Appeal from tlie City Court of Birmingham.
    Tried before the Hon Charles A. Senn.
    This action was brought by the appellee, John Bynum, against the Birmingham Railway, Light & Power Company, to recover ten thousand dollars damages for injuries alleged to have been sustained by him while a passenger on one of the defendant’s street cars, by reason of the negligence of the defendant; the negligence complained of being the defective condition of the coupling apparatus by which two of the cars of the defendant were coupled together, upon one of which cars the defendant urns riding at the time he sustained the injuries complained of.
    The defendant pleaded the general issue and several special pleas, setting up the contributory negligence of the plaintiff. The' facts of the case and the rulings of the court upon the evidence are sufficiently shown in the opinion.
    Upon the introduction of all the evidence, the defendant requested the court to give to the jury, among others, the following written charges, and separately excepted to the court’s refusal to give each of the several charges requested by it: (4.) “The court charges the jury that a person intending to take passage on the defend1 ant’s car, and for whom the car stopped to allow him to take passage, must enter the car by the usual and customary mode of entering the car and at the place provided for that purpose and that if he gets upon the car at an unusual place and attempts to ride by holding on some parts of the car, he is not a passenger, unless some agent of the defendant knew that lie was riding at such unusual place, or by the exercise of reasonable care ought to have known that he was so riding.” (5.) “If the jury believe from the evidence that the plaintiff was guilty .of negligence which proxinmtely contributed, even in the slightest degree, to his injury, they must return a verdict for the defendant.” (10.) “If the jury believe the evidence, they must find for the defendant.” (15.) “The court charges the jury that if they believe from the evidence that plaintiff did not board or attempt to board defendant’s car by the means and at the places provided for that purpose, and that he got upon the board or bumper at the end of the car without the knowledge or consent, or permission of defendant, or its agent, and that his position upon the bumper or board was not known to defendant’s agent in charge of the car, and that his being at said place contributed proxinmtely to his injury, then he was guilty of negligence which will bar his recovery.”
    There were verdict and judgment for the plaintiff, assessing his damages at $S95.82.
    • The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
    Walker, Tillman, Campbell & Walker, for appellant. —
    The uncontradicted evidence in the case shows that the plaintiff was guilty of contributory negligence as a matter of law. He was standing in an improper and hazardous place on the defendant’s car. — Bard v. Penn. Traction Co., (Pa.) 34 Atl. R. 953; Nieboer v. Detroit Go., (Mich.) 87 N. W. R., 626; Carroll v. Interstate Co.. (Mo.) 17 S. W. R., 889; Warden v. L. & N. R. R., 94 Ala'. 277; 10 So. Rep,, 277; Huehmkamp ease, 37 Mo. 537; Donovan case, 94 Ala. 299.
    The relation of passenger and carrier had not been established between the plaintiff and the defendant at the time the former was injured. Such relation rests upon a contract express or implied. — Bir. R. R. Co. v. Lidd.i-coat, 95 Ala. 545.
    The fifth charge requested by the defendant should have been given. Tt asserts the proposition that if the jury believe from the evidence that the plaintiff was guilty of negligence which proxinmtely contributed, even in the slightest degree to his injury, they must find for the defendant. There is no comparative negligence doc-, trine in this State, and if plaintiff’s negligence proximately contributes to the result, he cannot recover. Bollan<1 case, 01 Ala. 441; 8 So. R. 524, 527.
    Samuiol Will John, contra. —
    .The general affirmative charge requested by the defendant was projierly refused, “This charge should never be given where there is evidence which authorizes a reasonable inference of facts unfavorable to the right of recovery by the party asking such charge. — Birmingham Railway, Light & Power Co. v. Pinchará, 124 Ala. 374; White, McLane £ M. v. Farris, 124 Ala.' 476.
    “The carrier is always under obligations to use the utmost care and diligence in providing safe, suitable'sa\d sufficient vehicles for the conveyance of his passengers.” Cooley on Torts, (2d. eel.), §§ 645, 772; Hutchinson on Carriers, § 800; A. (r. 8. R. R. Co. v. Hill, 93 Ala. 520; M. A E. Railway Co. v. Mallette, 92 Ala. 215.
    It is very apparent that injury was inflicted upon By-num, through some defect in the coupling of the cars in the train, on which he was riding, therefore a strong presumption instantly arises, of negligence. — Hutchinson on Carriers, § 800; Patterson’s Railway Accident Law, § 375; Ga. Pae. R. Co. v. Love, 91 Ala. 434-35; M. & E. R’way Co. v. Mallette, 92 Ala. 215-16; A. (}. 8. R. R. Co. v. Hill, 93 Ala. 521.
    Bynum boarded the car after it had slopped at a regular station, for the purpose of riding to Birmingham, prepared, to pay his fare, thereupon the relation of passenger and carrier began, and Bynum became entitled to all the rights of a passenger. — Hutchinson on Carriers, (2d ed.), § 554; Cooley on Torts, side pages 644, 770; Patterson R’way Accident Law, § 218.
    “The fact of entering a carrier’s vehicle of transportation in good faith, to take passage thereon, makes one a passenger.” — 5 Amer. & Eng. Encyc., (2d ed.), pp.-492-3 and Note 1; 23 Amer. & Eng. Encyc., p/1004.
    Bynum did not lose his character as a passenger by riding on the outside of the vestibule; a more dangerous place tlian inside or in the car. — Broten & (Jo. v. Scar-boroij 97 Ala. 320.
    Bynum was not negligent in taking this car upon which there was no place to ride except on the rim, nor was he negligent in riding there, nor negligent to ride upon the rim from neccsn-ity, when the alternative was to ride there or get off the car. — Beach, Contributory Negligence, S 293; Maesel v. Lynn & ii. R. R., 8 Allen 236; 23 Amer. & Eng. Encvc., p. 1014 ; Topeka City It. R. (Jo. v. ll'igys, 34 Amer. & Eng. R. R. Cases, 529, 535; s. o. 48 Kan. 375; City R’umy (Jo. v. Lee, 34 Amer. & Eng. R. R. Cases, 568.
   HARALSON, J.

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, that the one in use was the same kind he was familiar with, and had testified about.

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 absolutely from liability oil this account. But whether he was guilty of such negligence as proximately contributed to his injury was one proper, under the evidence, for the determination of the jury. As applicable to the facts of this case, we quote the text, supported by many adjudications, as found in 23 Am. & Eng. Ency. Law (1st ed.) 1013-14: “Standing on the platform of the car does not necessarily constitute contributory negligence, in the absence of special circumstances showing it to be such, and the question is one to be submitted to the jury in all cases Avhich admit of a reasonable doubt. But the circumstances may show riding in such a position to be negligent, and in general it seems that riding in such a position, when there is room inside the car, creates a presumption of contributory negligence at least, and imposes the burden of proof upon the plaintiff to show that his riding in that position did not contribute to the injury. If the car is so Crowded that there is no room except upon the platform, and the conductor stops and allows the passenger to get on; the presumption of the passenger’s negligence does not exist; the company must, assume all risk when it requests its passengers to ride in such a place.”

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 care.’ (He was injured wliile standing on tlie platform). ‘It was a proper case to be submitted to tlie jury upon tbe special circumstances which appeared iu evidence.’” — Beach ou Contributory Negligence, §293; Meesel v. Lynn R. Co., 8 Allen 234; H. A. & B. R. R. Co. v. Donovan, 94 Ala. 299; Montgomery, & E. R. Co. v. Mallette, 92 Ala. 209.

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 defendant. Tbe doctrine of comparative negligence does not obtain in this State. — Fraser v. N. & S. Ala. R. R. Co., 81 Ala. 185. There is no averment that the injury was willfully or wantonly inflicted. It is certainly the law that any want of cave, however slight on the part of the plaintiff, if it contributed proximately to produce the injury, will defeat his action.- — Beach on Contributory Negligence, § 20; S. R. Co. v. Arnold, 114 Ala. 183, 191; Holland v. Tenn. C. I. & R. R. Co., 91 Ala. 444, 454.

The court erred in refusing this charge, and for that error the judgment below is reversed.

Reversed and remanded.  