[No. 15341. Department Oue.-June 11, 1894.]

MAURITZ E. LYNN, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT.

APPEAL INSTRUCTION NOT EXCEPTED TO-LAW OF CASE-REVIEW OF EVIDENCE. Where no exceptions are taken to the charge of the court to the jury, the charge becomes the law of the case upon appeal in the consideration of the sufficiency of the evidence to support the verdict. ID. PRESUMPTION UPON APPEAL-APPLICABILITY OF INSTRUCTIONS ΤΟ EVIDENCE-VERDICT NOT AGAINST LAW-INSUFFICIENCY OF EVIDENCE.— All presumptions upon appeal are in favor of the verdict, and if the court's charge to the jury includes instrctions of law sufficient to support it, when applied to the eviden found in the record, the verdict must be pheld as not ainst law, even though there be no sufficient evidence to support the verdict upon some other theory of the case covered by other instructions of the court. NEGLIGENCE OF RAILROAD COMPANY-OVERCROWDED TRAIN-JOLTING PASSENGER FROM PLATFORM-CONTRIBUTORY NEGLIGENCE. A rail. road company is guilty of negligence in running a heavily overloaded train of passenger-cars at such a rap... rate of speed over a curved track and cross-tracks, as to occasion jar or jolt severe enough to throw some of the passengers own, and a passenger who is riding upon the platform, owing to the overcrowded condition of the cars, and who 's jolted off, ir entitled to damages from the company for injuries received thereby, and cannot be said to be guilty of contributory egligence. ID.-DUTY OF COMPANY AS TO OVERCROWDED TRAIN.-A railroad company has the right to refuse to move its passenger trains if they become overcrowded, and it is unable to prevent the overcrowding; but if it does not pursue this course, and undertakes to transport all the passengers on board, whether within the cars or on the platforms, it is bound to exercise the additional care commensurate with the perils and dangers surrounding the passengers by reason of the overcrowded condition of the cars.

ID. RIGHT OF PASSENGER TO RIDE UPON PLATFORM.-One who boards a crowded passenger-car has a right, in the absence of any warning not to do so, to stand and ride upon the platform, if there is no ro within the car, and is entitled to the same care and consideration as any other passenger.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

W. H. L. Barnes, for Appellant.

Cope, Boyd, Fifield & Hoburg, for Respondent.

GAROUTTE, J.-This is an action to recover damages for injuries received by the plaintiff while a passenger upon the road of the defendant. The injuries were of a permanent character and very serious, and the verdict. of seven thousand five hundred dollars is not assailed as being excessive. The defendant appeals from the judgment and order denying a motion for a new trial.

The record discloses no exceptions taken to the introduction or exclusion of testimony. Neither are there any exceptions taken to the charge of the court. A motion for a nonsuit was made, and denied, and this appeal is now before us upon the question as to the sufficiency of the evidence to support the verdict of the jury. There being no exceptions to the charge of the court and it is possible no just exception could have been made thereto-the law by which we are to be guided in considering the merits of this appeal is settled, and all investigation upon that point foreclosed; for the law of the case, as far as the decision of this court is concerned, is the law that guided the jury in its deliberations in the trial court.

The undisputed facts of the case may be stated as follows: Upon the thirtieth day of May, 1891, a legal holiday, the plaintiff was a passenger upon the defendant's train of cars traveling from San Francisco to Shell Mound Park, having purchased a return ticket. The train was an excursion train, there being a picnic at the aforesaid park. Late in the afternoon he boarded a train to return to the city, but, owing to the great number of people desirous of returning to the city at that time, he, in company with many others, was unable to secure room inside of the cars, and thereupon stood upon the platform. The exact cause of the accident is a disputed question, but in course of the return trip the plaintiff fell from the platform and was badly injured.

That portion of the charge of the court which is material to the present investigation is as follows:

"I instruct you, therefore, that if, from all the evidence given before you, you believe that the said train

stopped at Shell Mound station, the plaintiff was justified in taking passage thereon, unless you also believe the defendant or its servants gave warning to persons there in waiting not to take passage thereon, and that such warning was understood, or ought to have been understood, by the plaintiff; and, if he took passage thereon without such warning given, he was rightfully a passenger on said train, and it was then the duty of the defendant to furnish him room and accommodations inside of the passenger-car; and further, if you believe that the plaintiff did not in fact hear or know of any warning given, if you believe any was given, then he cannot be affected by such warning, and was justified in taking passage on that train.

"Keeping in mind what I have already said to you, I further instruct you that if, from all the facts and circumstances given in evidence before you, you find and believe that plaintiff was lawfully upon that train as a passenger within the rules just stated to you, upon the return passage from Shell Mound, and that the defendant failed to furnish him room inside the car by reason of its crowded condition, and that he was obliged to, and did, for that reason, stand and ride upon the platform, and if you believe that while he was so standing and riding on the platform the defendant, by its servants, negligently and carelessly managed and ran its said train at such a rate of speed, so that, by reason thereof, in passing over a curve in said railroad, ... that the car upon the platform of which plaintiff was so standing was, by reason of such careless, negligent management of the train, and by such rate of speed, so swayed, shaken, jarred, and jolted, that the plaintiff, without any fault or negli gence on his part, but by or in consequence of the negligence of the defendant, as charged in the amended complaint, was thrown off from said car and the plat form thereof to and on the ground, and thereby injured, your verdict will be for the plaintiff.

"I also instruct you that if a railroad company receives upon its cars more passengers than it can fur

nish accommodations for inside the cars, and for that reason some are compelled to stand and ride on the platform, it is the duty of the company to take that condition of things into account in the management of the train and the rate of speed with which it is run. It cannot act in disregard of the actual state of things which it permits or suffers. In that case the obligation of the railroad company to passengers whom it receives upon crowded cars is that it will furnish such increased and more watchful and solicitous care, skill, and attention as the crowded condition of the cars require.

"If, therefore, the crowd of passengers applying for passage or crowding upon the cars is so great that it cannot be controlled by the train officers, and thereby overcrowds and overloads the train, it is the right of such officers to hold the train until they can secure the proper control of it, and as between the company and passengers on board, to whom tickets have been sold for the trip, entitling them to travel thereon, it is the duty of the train officials to do so, and to furnish room inside to all such persons. If they, however, proceed upon the trip without doing so, it is their duty to use the utmost care and diligence of very cautious persons for the safe carriage of the passengers, having regard to the actual location upon the train which the latter are compelled to take. The omission to use such degree of care is negligence on the part of the company."

The verdict must be sustained upon all questions where a substantial conflict of evidence is presented by the record. Measured by this test, respondent's evidence must be taken as true, and it follows that this train was traveling at a very rapid rate of speed, and, while so moving, owing to the fact that it was running upon a curved track, or over cross-tracks, or for both of these causes, a severe jar or jolt was occasioned which caused respondent to fall from the platform underneath the wheels of the car. In this regard the plaintiff testifies as follows: "The train on this occasion ran faster than it ever did before. It ran very fast. It ran

down to the mole very fast. In my experience, it ran faster than it usually did going down there. It continued at that rate of speed up to the time I fell. . . At the point where I was jolted off, the train was going unusually fast." The manner of the accident is thus described by him: "The way I experienced it, the car was kind of going half over off the track and gave a sudden jolt, and the way in giving this jolt I lost my hold behind me of this iron rod I had hold of, and I felt myself going, and I fell off, and that was all I know of it. One of the jolts was made near the switch there. [Pointing to the diagram.] Well, it seemed the wheels struck, and kind of threw the car half way over like. That was the sensation I had, and I could hear everybody scream. It broke my hold. I don't remember what situation I went off in, or how I struck."

The witness, Miss Hilda Treanor, says: "After the train left Shell Mound and came down to the Oakland mole, it was running very fast. I remember about the time Mr. Lynn fell off, or was thrown off, the train seemed to lurch a little bit. When he was thrown off I heard an outcry among the ladies inside of the car. About that time I heard a great many exclamations of surprise, for instance, 'Gracious!' and 'My gracious!' and words meaning the same thing. The lurch of the train partly threw down the persons who were standing within the aisle of the car. It had the same effect upon

them as it had upon me; it threw them down. I mean by that I would have fallen upon the floor but for the people standing around me. They went over on the seats against people who were sitting in the seats. As far as I can recollect, people were unbalanced, and I myself would have fallen on the floor had there not been somebody I fell against. As it was, I did not fall right over, and as far as I noticed everybody standing in the aisle the same thing happened to them."

Captain William Treanor says: "The train seemed to be running extremely fast, as I thought, as it came down the Oakland mole. The train gave a very