Morgan v. Lake Shore & Michigan Southern Railway Co.

Moore, C. J. The plaintiff recovered a judgment for injuries received by him while a passenger on defendant’s road. The case is brought here by writ of error. There is scarcely any dispute about the facts. Plaintiff resides near Woodstock station on the Ypsilanti Branch •of the Lake Shore & Michigan Southern Railway. The ■defendant advertised an excursion at reduced rates for the Hillsdale fair in 1901. On the last day of the fair, plaintiff purchased a round-trip ticket to Hillsdale and return, good for that day only. On the way to Hillsdale in the morning there were eleven coaches. On the return trip there were only five coaches in the train, and plaintiff claims that all the seats were occupied, and people were standing in the aisles and upon the platforms; that he made his way up onto the rear platform of the fourth car, and when the train started he stepped into the rear end of the coach, and found standing room near the door; that the car in which he stood was badly crowded, men were smoking in the car, and it was hot, the ventilation was poor, and by the time the train had proceeded three or four miles he felt sick, and thought he would faint, and, [628] not being able to get near a window, he opened the door, and stepped oqt on the platform. Thinking that riding backwards might increase his sickness, he stepped across on the opposite platform, and turned his back to the end of the car, leaned against it, and held onto the hand rail. He stood in this position for a few moments, when he lost consciousness, and rolled down the steps and off onto the ground. He also claims the train was running upwards of 40 miles an hour. The only question involved here is whether the plaintiff, as a matter of law, under all the circumstances, was-guilty of contributory negligence in going out upon the platform to relieve his sickness. The plaintiff claims he was not. The defendant insists he was, and that a verdict should have been directed in its favor. Before discussing this question it is proper that we should, say that we are not at liberty on this record to consider the questions of defendant’s negligence, and of whether that negligence was the proximate cause of plaintiff’s injury. These questions were not raised in the lower court. The question of defendant’s negligence is not raised in this court. The question of that negligence being the proximate cause of plaintiff’s injury is raised in this court only in this way: “ In no view of this case can it be said that any alleged act of the defendant was the proximate cause of the accident to the plaintiff. The sole cause of the accident to' plaintiff was his own act in leaving a place of safety within the coach and assuming a perilous position on the outside.” We are referred to no assignment of error to which this argument is applicable, and diligent search on our part has enabled us to find none. We therefore conclude, as heretofore stated, that this question is not presented by the record. In deciding this case we therefore assume that while plaintiff was on the platform he was injured in consequence of defendant’s negligence—negligence which was the proximate cause of his injury. [629] The question then presented for our determination is whether, under the circumstances, plaintiff was negligent in leaving the car and going on the platform, so as to bar his recovery for an injury there received as a direct consequence of defendant’s negligence. It must be confessed there is a want of uniformity in the decisions as to whether a person should be chargeable, as a matter of law, with contributory negligence, in going out upon the platform when no seat was furnished him in the car. The New York court has held that in going upon the platform, where the company failed to furnish a passenger a seat, he was not, as a matter of law, chargeable with contributory negligence. Willis v. Railroad Co., 34 N. Y. 670. The Wisconsin court has held that where a passenger voluntarily goes upon a platform, where no seat is furnished him, it is a question for the jury to say whether he was guilty of contributory negligence. Ward v. Railway Co., 102 Wis. 215. The Minnesota court has held—and this holding has been followed by several other States—that where a passenger voluntarily goes out upon the platform, where no seat is provided for him, but there is standing room in the •car, he is guilty of contributory negligence as a matter of law. Rolette v. Railway Co., 91 Minn. 16. It is the claim of defendant that the last case mentioned is sustained by the great weight of authority, and should control; citing many cases, and especially Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, which it is claimed is a parallel case to the one at bar. While the case resembles this one in many respects, it may be distinguished in some important particulars. It appears from the opinion in Cleveland, etc., R. Co. v. Moneyhun, supra, that the record does not disclose what made the plaintiff sick. It also appears “ he was not content to stop on the platform, but went upon the lower step, and stood there with his back towards the platform and his head leaning outward.” The court was of the opinion that the facts disclosed a [630] clear case of contributory negligence, and so held. In our view of the case we do not need to decide which of these lines of cases is sustained by the weight of authority. All •of them recognize the rule that, if the passenger is necessarily on the platform because of conditions created by the railway company, he is not precluded from recovering damages. Section 6303, 2 Comp. Laws, reads: “In case any passenger on any such road shall be killed or injured while on the platform of a car or while in • or on any baggage or freight car in violation of the printed regulations of the company posted up at the time, in a conspicuous place inside its passenger cars then in the train, such company shall not be liable for the injury, if the injury be occasioned by the person being improperly on such platform, or within such baggage or freight car, or after having been notified by the conductor or any other person having charge of any train that such person is not in the proper place: Provided, said company at the time furnished room and seats inside its passenger cars sufficient for the proper accommodation of its passengers.” This statute clearly recognizes, by inference at least, that conditions may arise where one would be entitled to recover, even though he was riding upon the platform. There was testimony in the case from which the jury might find, not only that the cars were so crowded that all the seats' were occupied, but from which they might easily draw the inference that the passenger became faint because of the conditions existing as the result of negligence on the part of the defendant, and, as he could not. get to a window to relieve his faintness, he sought what is usually an effective remedy, fresh air, at the only place he could find it. We do not think that it can be said, as a matter of law, that this was contributory negligence. It is said: “ It was error for the court to charge the jury where the court states, ‘and you find that plaintiff was thrown- off the platform onto the ground and injured by reason of such sickness so caused, and by reason of the speed of the [631] train—that is, the high rate of speed of the train over this track—or the tipping of the platform on a curve in the track, then plaintiff would be entitled to recover.’ And we submit there was no testimony that would justify this charge as to the high rate of speed as affecting plaintiff’s falling from the train. Nor is there any allegation in the declaration that the speed of the train was in any manner the cause of plaintiff falling from the train.” The question of the high rate of speed being negligence was not raised. We think there was testimony of the high rate of speed. We also think the following averment was sufficient: . ” “That while he was standing at said door, holding onto the hand railing on the end of the car, he became and was unconscious by reason of said foul and unwholesome air, and fell from said train while the same was running at a high rate of speed, and struck with great force on the ground.” Judgment is affirmed. Carpenter and Montgomery, JJ., concurred with Moore, C. J.