Highland Avenue & Belt Railroad v. Donovan

94 Ala. 299

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

McCLELLAN, J.

— What constitutes the exercise of due care, and, conversely, what amounts to negligence, depends in all cases, of course, upon the circumstances surrounding the person whose conduct, in these respects, is under investigation. A man may be negligent in failing to ascertain his environments, no less than in the omission of that course of action, with respect to a situation known to him, which prudence dictates. But, having been duly careful to acquaint himself as best he may with all the facts which should have a legitimate influence in shaping his conduct, his subsequent action is to be gauged with respect to the observance or lack of care and caution, not by the real facts which, or some of which, his circumspection may have failed to disclose to him, but by the appearance of things as uncovered by that degree of effort to ascertain the real facts which men of ordinary prudence would put forth in the premises. In other words, “he is not bound to see; he is bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances. He is not to provide against any certain results. He is to make an effort for a result that will give safety — such an effort as caution, care and prudence will dictate.” — Greany R. R. Co. v. Long Island R. R. Co., 101 N. Y., 419; s. c., 24 Amer. & Eng. R. R. Cases, 476.

There is evidence in the record going to show that, when the plaintiff boarded defendant’s car — there being only one in the train — every seat and the aisle were occupied, that the rear platform was also fully occupied, and that there were several people on the front platform. Plaintiff, finding he could not get on the rear, went to and took a position on the front platform. From this position, which afforded a view through an open window of the whole interior of the car, it appeared to him that there was no available space for him on the inside. If the jury found the facts in line with these tendencies of the testimony, they would have been justified in finding further that the plaintiff exercised due diligence and ■ caution in ascertaining the situation, and hence had a right to act upon the facts which such diligence and caution disclosed, whether they were the real facts or not. It follows that, assuming proper circumspection to have been observed by plaintiff, evidence as to whether the car presented the appearance of being entirely full was pertinent, and properly received, and the charge requested for plaintiff, which authorized the jury to find plaintiff free from negligence in taking a position on the platform if there was a reasonable necessity, real or apparent, for his doing so, correctly stated the law. The application of this principle to charge 7 requested by defendant must lead to its condemnation as being misleading in itself, and affirmatively bad when read in the light of the evidence.

2. It is insisted for the appellant, that the assumption of a position on the front platform was negligence as a matter of law in the plaintiff, for that a rule of the carrier, which was known to him, forbade his doing so. Ordinarily, no doubt, this would be true; but, in this instance, it is not on one phase of the evidence, for the reason that there was no other position on the train open to plaintiff, and,he was impliedly invited by the conductor to take this position, accepted as a passenger while occupying it, and his safe carriage while occupying it was assumed by the defendant. A tendency of the evidence goes to show that the position was not obviously a dangerous one, and would have been unattended by danger or injury in this instance had the carrier exercised due care in operating its train. On these tendencies of the evidence, the whole question of negligence vel non on the part of the plaintiff, so far as the known rule of the company and the supposed inherent danger of the position bear upon it, was one of fact for the determination of the jury. Charges 3 and 5 asked by defendant involved the determination of this question by the court, and were properly refused. — Railway Co. v. Wallin, 2 Am. & R. R. Cases, 20 (and notes); Willis v. L. & B. R. R. Co., 34 N. Y. 670 ; Nolan v. B. C. & N. R. R. Co., 3 Am. & Eng. R. R. Cases, 463; L. R. & F. S. R. R. Co. v. Miles, 13 Am. & Eng. R. R. Cases, 10; L. I. R. R. Co. v. Werle, 21 Am. & Eng. Cases, 429 ; N. H. & C. Ry. Co. v. May, 27 Am. & Eng. R. R. Cases, 151; 2 Am. & Eng. Ency. of Law, p. 766, (n. 5.)

The judgment of the City Court is affirmed.