Tramway Co. v. Reid. body had come in contact with some part of the car that was charged with electricity, and that when his ankle struck the ground the circuit was completed, experts were examined, whose evidence tends to show that the burns might have been caused in this way, although expert electricians were introduced by the defendant, who testified that the burns could not have been caused in the manner claimed by plaintiff, or by electricity from the car in any way. Some half dozen witnesses were introduced on behalf of defendant, who contradicted his statements as to the manner in which the accident occurred. These witnesses testified that the plaintiff, not waiting for the car to stop, got up, and stepped off in the middle of the street, the cars being required to stop only at the far side of intervening streets. The conductor testified that he was engaged in collecting fares at the time, and saw no signal from Reid to stop, but that the car was being stopped for other passengers to alight. The verdict is against the weight of evidence, and it is probable that the result was influenced by this improper testimony, and the remarks of plaintiff's counsel [referring to certain testimony in impeachment of a witness, and remarks of counsel with reference thereto], and therefore, the judgment must be reversed. We are also of opinion that the first instruction is erroneous. By it the jury are told, inter alia, that: "The plaintiff getting up from his seat and preparing to get off of the car before the car had fully come to a standstill, but was very slightly moving, was not contributory negli gence on the part of the plaintiff, unless such getting up from his seat and otherwise preparing to get off the car and alighting therefrom was done in a careless or negligent manner were the circumstances and surroundings VOL. VI-26. Tramway Co. v. Reid. considered. For, if such negligence-if there was anyon the part of the plaintiff, was slight, or the remote cause of the injury, he may recover, notwithtanding such slight negligence or remote cause.' In the last few years horses have been almost entirely displaced as a motive power on street car lines in cities. by cables and electricity, and the operation of cars and trains correspondingly accelerated. As transit becomes more rapid, the dangers incident to street railway travel are correspondingly augmented, and as the danger is increased the law exacts greater care on the part of both the passenger and the carrier. For this reason many of the decisions applicable to passengers on horse cars are inapplicable to the newer methods of transportation. The cable and electric service of to-day more nearly resembles the ordinary railway train, and the case law which has grown up with reference to the latter is more in point. It has been held in a number of cases that a passenger upon a railway "has no right to attempt to alight from a train of cars when in motion, and if he undertakes to do so without the knowledge or direction of any employe of the company, it is at his peril." Secor et al. v. T. P. & W. Ry. Co., 10 Fed. Rep. 15, and cases cited; 2 Wood's Railway Law, §§ 305, 1126; Hutchinson on Carriers, § 643 ; Solomon v. Manhattan Ry. Co., 103 N. Y. 438. In other jurisdictions it has been held that in case of injuries received by a passenger in alighting from a slowly moving train, the question of plaintiff's negligence is a question of fact for the jury to determine. And this seems to be the trend of recent authority, although this rule is subject to some exceptions. Beach on Contributory Negligence, Section 147; Leslie v. Wabash, &c. Ry. Co.,'88 Mo. 50; Taylor v. Missouri Pacific Ry. Co., Mo. 26 App. 336; Penn. R. Co. v. Lyons, 129 Pa. St. 113; Covington v. Western, &c. R. R. Co., 81 Ga. 273. Tramway Co. v. Reid. The latter view we think the better one as applied to passengers upon electric cars. In this case the plaintiff says that he was preparing to leave the train by stepping down on the side step, when he was violently thrown to the ground. This being the preparation stated by the plaintiff, the jury must have believed from the instruction that they were not at liberty to hold him guilty of contributory negligence by reason of this act, unless performed in a careless or negligent manner. The accident occurred between eight and nine o'clock at night. The plaintiff was at the time upwards of sixty years of age, and whether ther, in these circumstances, it was negligent on his part to thus step down on the moving car, was not a question of law for the court, but a question of fact for the jury. Then, again, this instruction seems to recognize comparative degree sof negligence. It is misleading in this respect, if not positively erroneous. Outside of the States of Illinois, Georgia and Tennessee, and perhaps a few others, such comparison is not permitted; the test elsewhere being the plaintiff's contributory negligence. And it may now be considered as well established outside of the above jurisdiction that in cases of this character the plaintiff cannot prevail if his own negligence contributed to the injury, and without which it would not have happened. Lord v. Pueblo Smelting & Refining Co., 12 Colo. 390; Beach Contrib. Neg. § 34; O'Keefe v. Chicago, &c. Railroad Co., 32 Iowa, 467; Wells v. N. Y. &c. Railroad Co. 24 N. Y. 181; Wilds v. Hudson, &c. Railroad Co., 24 N. Y. 430; Louisville, &c. Railway Co. v. Shanks, 94 Ind. 598; Starry v. Dubuque, &c. Railroad Co., 51 Iowa, 419. For the reasons given, the judgment of the Court of Appeals will be reversed, with directions to reverse the judgment of the trial court. Reversed. NOTE.-See note to Danville St. Car Co. v. Payne, post. Railway Co. v. Heixner. THE CICERO AND PROVISO STREET RAILWAY COMPANY V. FRANK MEIXNER. It is not contrib utory negligence as matter of law for a person to attempt to board an electric street car while in motion. Questions of negligence and contributory negligence held properly submitted to the jury. APPEAL by defendant from judgment of Appellate Court, affirming a judgment of the trial court entered upon the verdict of a jury in an action for damages for personal injuries received by plaintiff while attempting to board an electric street car. William H. Barnum, John A. Post and John B. Brady, for appellant. Brandt & Hoffman, for appellee. Justice PHILLIPS delivered the opinion of the court: One of the errors assigned for the reversal of this judg ment is the refusal of the trial court to instruct the jury to find for the defendant, at the close of the plaintiff's evidence, and the refusal of the court to give a like instruction that, as a matter of law, the plaintiff had failed to make out his case, which was asked at the close of the argument. It is urged that the evidence of plaintiff did not warrant the jury in finding that the injury of plaintiff was the result of defendant's negligence, as charged in the declara Railway Co. v. Heixner. tion, and also that the evidence of plaintiff establishes that he was not at the time of his injury in the exercise of reasonable care and caution. Both of these matters are ordinarily questions of fact, to be determined in the trial and appellate courts. As this court has frequently held, it is not our province to determine or pass upon such questions, further than to ascertain whether or not there was, at the close of plaintiff's case, evidence tending to prove the facts alleged in the declaration, and whether, at the close of all the testimony, when the motion to instruct for plaintiff was refused, the evidence, with all the inferences which the jury can justly draw from it, was insufficient to support a verdict for plaintiff, and that, if one was returned, it must be set aside. Lake Shore and Michigan Southern Railway Co. v. Richards, 152 Ill. 59; Wenona Coal Co. v. Holmquist, 152 id. 581; Pulman Palace Car Co. v. Laack, 143 id. 242; Purdy v. Hall, 134 id. 298; Chicago and Northwestern Railway Co. v. Dunleavy, 129 id. 132; Bartelott v. International Bank, 119 id. 259; Simmons v. Chicago and Tomah Railroad Co., 110 id. 340. Two elements alleged in the declaration, and necessary to be established by plaintiff before he could recover, were negligence of the defendant, as charged, and that the plaintiff was in the exercise of due care and caution for his own safety. It is not the province of this court to say whether these facts are proven. The evidence before the trial court and jury tended to show that plaintiff, on August 10, 1891, was on Madison street, in Chicago, about two blocks east of Desplaines avenue. He was walking east on the north side of Madison street, intending to board an east bound car on defendant's line. When a car approached, and was distant one hundred and fifty or two hundred feet, plaintiff, still being on the sidewalk on the north side of the street, signaled to the motorman, by throwing up his hand. He then proceeded diagonally |