The Birmingham age-herald., 1919-01-01

aid IS arranged lne leSSOHS VIII pS SlN- en at the workroom by local physi- the requirements of the ordinance with
 respect to the dispatch. of cars from
 the Pennsylvania terminal are either
 impossible of performance or so dlffi- cult of performance as to render the ordinance oppressive. The operation or the ordinance is, therefore, not wholly un- reasonable. Exceptional circumstances that may render it's performance impos- sible in particular instances may pc availed of by way of defense if action is brought for recovery of the penalty that the ordinance prescribes. If an orui- nance may operate reasonably in some instances or circumstances. and unrea- sonably in others, 1t is not wholly void' and should not be set aside in toto.
 "The ordinance before us not appearing to be at all unreasonable in its applica- tion to the Erie terminal and not under all circumstances unreasonable in it's ap- plicaton to the Pennsylvania terminal, It should be permitted to stand, to the end that it may be enforced. except in part1c- ular cases where it may be made to ap- pear that the circumstances render the operation of it's provisions unreasonaple or oppressive"
 We are, therefore, unable to see that the ordinance is invalid for any of the reasons set forth by the defendant. It is a reasonable requirement that the number of passengers which shall be permitted to ride within the car shall not be more than 50 per cent greater than the seating capacity of the car. It has even been held by the supreme court of Kentucky that an ordinance prohibiting the crowding of a car one third greater than the seating ca pacity Is not unreasonable. Where a greater number of people are permit ted to be in a car. there is certainly more or less tendency to create dis orders and then to bring about condi- tions not favorable to the health or comfort of the passengers. If the company cannot provide the necessary accornmoda tions for the travellng pub lie on the cars it has, it must provide itself with more cars. It is public servant created for a public purpose, and while it enjoys its franchise. it must discharge the duties imposed upon it by the franchise.
 The demurrers are, therefore, over ruled
 Taking up the South Ensley line first. consisting of four cases. charg ing in two failure to maintain the headway as prescribed by the ordi- nance. and in the other two allowing undue congestion, it has been clearly , proven that the ordinance was vio-
 
 days Without referring to particular | instances it has clearly been proven that during the period of time cov cred by the complaints the defend ant company constantly failed to main tain the headway prescribed, and that the cars were so overcrowded on nu- merous occasions that passenR CTS were jammed in all the standing space. and to use an expression of one of the witnesses. packed like sar dimes in box"
 The defendant. as a matter of de- fense to these complaints. besides the broad defense interposed to all the complaints of lack of manpower, claimed that they could not maintain the headway on this line by reason of a long run from Ensley to Fairfield with only one siding claiming that by reason of this physical condition that the headway could not be main tained. However, under cross exami- nation it was shown that this condition could be remedied by the installation of additional side track. and as has been decided in the air brake case re- ferred to above, the mere fact that this would require large outlay of expense. is not sufficient excuse to ab- solve the company from blame. as they are required 10 do all that is reason able to take care of a conges.ed traf- AHtm AHc EcuSAcS fliltSs WHiCn 1S apparent
 sss szyzard to the East Lake line, con- .isfing of two eases of undue conges- rssn sne one of failure to maintain crorer hesdway. the evidence clearly sla1Er a violation of the ordinance n these cases during the period which tAr cezu,lsinfs cover. The headway na-~ngmerOgs occasions fell far short of that required by the ordinance and ihe congestion was nearly. if not Qrsre. as bad as that shown on the South Ensiey line.
 On the Gate City line there is one charge of failure to maintain the head way as prescribed in the ordinance. and the evidence shows that ,on De- rember there was serious disar- engagement of this headway. The de- fendant offered no specific excuse in this instance
 'On the Highland Avenue line is ore case Of failure to maintain the head way The proof showed that on No- vember 29 there was also a serious dis arrangement of the schedule on ti.is line.
 There are three cases on the Lake view line charging failure to maintain the headway as prescribed in the or dinance. In the first case. No 6427-P, the proof showed on December 4th that the headway was not maintained.
 In the next case. NO. 642b-P, In winch the city attempted to make out a case solely by the witness. Carter, is too indefinite and uncertain to justify a conviction N
 The next case. No. 6425-P. which merely showed a lapse on November 29 of one hour and 40 minutes. or no car between the hours of 11:42 A. m. and 1.27 p. m.. by the witness, Traf- ford. who first testified that this oc- cured on November 27th and later changed to November 29th. and which was attempted to be explained by the defendant on account of some extra ordinary condition, the court feels that the defendant should>be given the bsn- eft of any actual or substantial doubt and. therefore. discharges them in that case.
 TEis leaves two cases. consisting of the Fountain Heights and Idlewild lines, charging failure to maintain the prescribed headway on December 4th. between the hours of 500 and FOG D. m The evidence clearly showed that on this date there was a serious disar- rangement of the headway between these hours. However. the defendant company explained this delay by proof of 6 breakdown in the rotary at the power house which was further aug mented by a blockade of trains at the Twentieth street crossing. and a-s has been before stated in the opinion above, it is not to be supposed that the company will be held liable for the results that might occasionally be Dro-