edge and experience. The rule is to be applied which requires the exercise of such care as men of common prudence usually exercise in positions of like exposure and danger. The question is in most cases a question to be submitted to the jury, but when the circumstances are not complicated, and the undisputed evidence discloses conduct which would be condemned as careless by men of common prudence, it is the duty of the judge to instruct the jury to find a verdict for the defendant. Gavett v. Manchester & Lawrence Railroad, 16 Gray, 501; Gahagan v. Boston & Lowell Railroad, 1 Allen, 187; Todd v. Old Colony & Fall River Railroad, 7 Allen, 207; Hickey v. Boston & Lowell Railroad, 14 Allen, 429. See also Baltimore City Passenger Railway v. Wilkinson, 30 Md., 224.

It appears in this case, from uncontradicted evidence, that Wills, the plaintiff's intestate, on the night of this accident, got on the front platform of the defendant's car, and remained standing in that place until the car approached a drawbridge on the road, when he sat down on the platform with his feet on the step. He was told by the driver of the car that he had better not sit in that place, as it was against the rules of the company and unsafe, to which Wills made a reply not understood by the driver. Wills continued however to occupy his sitting position on the side of the platform while the car was detained at the bridge some fifteen minutes by an open draw; and remained there until he fell from the car after it had passed the bridge. There was conflicting evidence as to the speed of the car, but no evidence that it was unusual or unlawful at that place. There were notices posted on the under side of the roof of the platforms of this car, that all persons were forbidden by order of the directors to be on the front platform, and that the company would not be responsible for the safety of passengers while there.

This evidence wholly fails to show that the plaintiff's intestate was in the exercise of due care. He was a passenger, occupying an exposed and unusual place, in a constrained and awkward position, against the rules of the road and the warning of the driver. It does not appear that there was any excuse or justification for his conduct in the fact that the seats of the car were full, or that he was required or permitted by the defendant's servants and agents to take that place. And there is no evidence that he took any precaution by holding on to the railing or otherwise to prevent the accident. A passenger is not justified in taking a risk unnecessarily; and courts have a right to consider well-known facts as bearing upon questions of this description. The case differs from Meesel v. Lynn & Boston Railroad, 8 Allen, 234. There the plaintiff had paid his fare, and was told by the conductor to go on the front platform with the driver and five or six other persons. He was thrown off while the car was turning a corner at unusual

speed, and when he was standing up and holding on to an iron railing; and the court properly refused to rule, as matter of law, that he was not in the exercise of due care.

A street railway corporation has a right to make all reasonable regulations for the safety of passengers. A rule prohibiting passengers from riding on the front platform is a reasonable regulation, and one who knowingly violates it, without some reasonable excuse or necessity, cannot be said to be free from negligence, if the act contributes to his injury. There can be no doubt in this case that this negligence of Wills contributed to the injury which he suffered.

Judgment on the verdict.

As to passengers riding upon the front platform, see Burns v. Bellefontaine R. R. Co., 50 Mo., 139; Clark v. Eighth Ave. R. R. Co., 36 N. Y., 135; Ward v. Central, etc., R. R. Co., 42 How. Pr. (N. Y.), 289; Maguire e. Middlesex R. R. Co., 115 Mass., 239; Pittsburg R. R. Co. v. Caldwell, 74 Pa. St., 421. As to the right of juries to pass upon questions of negligence, see Johnson v. Chicago, etc., R. R. Co., note, 1 Âm. & Eng. R. R. Čas., 155.

THIRTEENTH & FIFTEENTH STREETS PASSENGER RAILWAY

V.

BOUDROU.

(Advance Case, Pennsylvania. February 2, 1880.)

The fact that a passenger, who was injured by the proximate negligence of a railway company, was himself guilty of want of care, will not prevent his recovering damages against the company, provided his carelessness did not contribute to the accident, or only remotely contributed thereto. The test for contributory negligence is found in the affirmative of the question, Did the plaintiff's negligence contribute in any degree to the happening of the injury complained of? If it did, there can be no recovery; if it did not, it is not to be considered.

The act of a passenger in riding upon the rear platform of a crowded street railway car is not contributory negligence, where he was struck and injured by the pole of a following car. Although the accident would not have happened except for his position, that position was a condition but not a cause of the injury; and the court properly withdrew from the jury the question of contributory negligence.

Sharswood, C. J., and Paxson, J., dissent.

Per Paxson, J. "The question of contributory negligence on the part of the plaintiff, under such circumstances, was for the jury. I therefore

dissent."

A plaintiff may recover his actual damages for injuries sustained (prior as well as subsequently to the Constitution of 1874), without limitation as to amount. The Act of April 4, 1868, § 2, limiting a recovery to $3000 in case of personal injury, was unconstitutional.

Central R. R. of N. J. v. Cook, 1 Weekly Notes (Pa.), 319, affirmed.

Error to the Common Pleas No. 3, of Philadelphia County.

Case, by Alexander Boudrou against the Thirteenth & Fifteenth Streets Passenger Railway Company, to recover damages for injuries caused by the defendant's alleged negligence. Plea, Not guilty.

On the trial, before Finletter, J., the following facts appeared:

About ten o'clock on the night of April 18, 1871, the plaintiff got on car 13 of the company defendant to go to his house on the corner of Fifteenth Street and Columbia Avenue. He, with six or eight others, was obliged to stand upon the rear platform, because the car was so crowded that he could not enter it. He had been drinking during the evening, but not so much as to be unable to take care of himself or not to know what he was doing. After he got on, the car went on to Chestnut Street, where it stopped and three persons got on-of these, two ladies stood upon the platform for a while, and afterwards were given places inside the car, and the gentleman who was with them stood upon the front platform. The car, which was crowded all the way up-town, stopped once or twice, receiving and letting off passengers. When it arrived at the south side of Mt. Vernon Street it stopped to allow some passengers to get off. Just as it came to a stop, car 14 of the same line, which was following closely and rapidly, collided with it, by reason of the breaking of the brake-chain. The plaintiff, who was leaning against the dasher, was struck in the back by the pole of car 14, carried forward from the platform into the body of the car, and thrown violently down to the floor. Two of his ribs were broken and two compressed, and his right lung and spinal column were severely injured. The plaintiff, who for a time was unconscious, remained in the car until it reached Columbia Avenue, and was carried home, where he remained in great suffering for nearly three months, when his mental and physicial condition were so much impaired as almost to unfit him for business. At the time of the accident he was about fifty-one years of age, robust, and in good health, and active and energetic in his business, which was that of buying and selling real estate on his own account, real estate brokerage, manufacturing and selling patent blacking,

etc.

The court charged inter alia as follows:

"Standing upon the rear platform was not negligence, even if there was room in the body of the car, unless he was specially warned of danger, and recklessly persisted in staying; and unless it appear that the injury he suffered was one which fell on him because he was in that particular place or position. But a passenger upon the back platform has no reason to suppose that he may be run down by a following car. In this respect he is as much under the care of the driver of the coming car as he is under the care of the driver and conductor of his own car. It is not

one of the dangers which make the rear platform dangerous. The danger of falling off, of being knocked off by means not connected with the road, he doubtless takes upon himself; but to be driven into by the car following is not, and ought not to be considered, one of the incidents of riding upon the rear platform of a passenger car.

"If, therefore, you should find that the plaintiff was negligent in standing upon the rear platform, and yet find that the collision could not have happened but for the negligence of the driver of car 14, plaintiff's negligence is not a bar to his recovery. In this event his negligence is to be considered a remote negligence and not a cause of the injury."

The defendants submitted, inter alia, the following points:

(1) That if the jury believe from the evidence that the plaintiff voluntarily put himself in a place of exposure, and that in consequence of it the injury to him happened, he cannot recover, although he may be able to show negligence by the defendant. (Mayo v. Boston & Maine R. R., 104 Mass., 139.) Refused. (Seventh assignment of error.)

(2) That if the jury believe from the evidence that the plaintiff voluntarily got upon the platform of the car, knowing the car to be so crowded with passengers that he could not enter the car, but would be obliged to stand on the platform; that he did so stand on the platform, and in consequence of being in that place on the car he received the injury, then he was guilty of negligence, and the verdict must be for the defendant. Refused. (Eighth assignment of error.)

(4) That the platforms of a passenger railway car are intended for ingress and egress from the car, and it is negligence in a passenger to use them for any other purpose. That if the jury find from the evidence that the plaintiff occupied the back platform of the car on which he received his injury for the purpose of being carried as a passenger, he was guilty of contributory negligence, and the verdict must be for the defendant. Refused. (Tenth assignment of error.)

Verdict for the plaintiff of $10,000, and judgment thereon. The defendants took this writ of error, assigning for error, inter alia, the part of the charge of the court above cited and the refusal of their points.

Wm. Rotch Wister and George W. Thorn (with whom was R. P. White), for plaintiff in error:

The plaintiff cannot recover unless he himself has been free from all negligence contributing to the accident. Redfield on Railways, $193.

The injury done to the plaintiff was directly in consequence of his being on the back platform, for no one inside the car was hurt. The question whether his position on the rear platform contributed

to his injury was for the jury. It is well-settled law that what is or is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care. West Chester & Phila. R. R., v. McElwee, 17 Sm., 311; Detroit & Milwaukee R. R., v. Van Steinburg, 17 Mich., 99; Huelsenkamp v. Citizens' Ry. Co., 37 Mo., 537.

egress

The primary use of a platform is that of ingress to, and from, the car, and unquestionably it is a place of greater danger than the body of the car. The plaintiff voluntarily exposed himself to risk by riding on it, for the evidence shows he could have found room inside the car. He was guilty of negligence, for he omitted to do what a prudent and reasonable man would have done in such a case. It is well-established law in Pennsylvania that any act of the plaintiff, whether of omission or commission, which contributes to the accident, is a bar to recovery.

The case of C. R. R. of N. J. v. Cook (1 Weekly Notes, 319) was overruled by Langdon v. R. R. Co., recently decided, not yet reported.

John Scollay and F. Carroll Brewster, for defendant in error:

The ruling of the court below is in exact accordance with the principle that, "The company shall be guilty of some negligence, and the passenger should not have been guilty of any want of ordinary care and prudence which directly contributed to the injury, since no one can recover for an injury of which his own negligence was in whole or in part the proximate cause." 2 Redfield on Railways, 193.

In an action for an injury occasioned by the negligence of a defendant, the plaintiff cannot be held guilty of contributory negligence, unless he had some reason to expect danger from some natural and probable quarter, and voluntarily allowed himself and his property to remain in that danger, or voluntarily placed himself or his property in that danger. Greenland v. Chaplin, 5 Exch., 243. The danger here was so remote, that it imposed no duty upon the plaintiff to guard against it. Corrigan v. The Sugar Refinery, 98 Mass., 577.

Where the plaintiff's negligence is the remote, and defendant's the proximate cause of the injury, or, in other words, when the plaintiff's negligence was a condition of the injury, but not its judicial cause, the plaintiff may recover. Wharton on the Law of Negligence, § 323; Gale v. Lisbon, 52 N. H., 174.

Defend

TRUNKEY, J.-The chief debatable question is presented in the sixth, seventh, eighth, and tenth specifications of error. ant claims that the plaintiff was guilty of negligence which contributed to the accident, and that this was a question for the jury. The rule cited by its counsel is correct, namely, that to render a