Railway Co. v. Godola. of the car, and to throw others from the platform of the motor and trailer to the ground while striving to maintain their positions thereon, a finding of negligence fails to strike the judicial mind as either unreasonable or unwarranted. In this connection a brief reference to evidence may not be out of place. Sergeant Whalen, a police officer of the city of Omaha, testified that he lost his hold upon the front platform of the trailer, and was thrown off, when the train struck the curve. Arthur Creighton, who was sitting upon the dashboard of the trailer, and holding with his right hand to the hood of the car, was, as he testified, thrown over the head of a friend, and lit upon the ground 10 to 15 feet distant. Dr. Carpenter testified that as the train struck the curve he saw several men flying through the air, and was being thrown off himself. John W. Parr, when asked about what occurred when the train reached the curve at Thirteenth and Locust streets, answered: "I don't know what street it is, but where they throwed everybody off." Philip McLarnen was asked, "What occurred when you got to that point?" meaning the curve in question, and replied: "They went around that curve at a pretty good hickory. There was several of them took a tumble; they rolled off like pumpkins. Mr. Lloyd, who, with his wife and son, was seated inside the motor, testified that he was thrown to the opposite side of the car, and that the passengers were in a state of commotion. There was evidence ending to prove that the speed of the train when it struck the curve was from 12 to 15 miles an hour. Mr. Gray, the conductor in charge, testified that he was running from 7 to 10 miles an hour, and admitted that it was unsafe to go around the curve in question at a rate of speed exceeding 5 miles an hour. It is true the foregoing statements are in part contradicted by the witnesses for the defendant, but the evidence, under the well established rule of this court, is, to say the least, quite sufficient to sustain the verdict Railway Co. v. Godoła. upon the issue of negligence in the operation of the train. The plaintiff was not, as a matter of law, guilty of contributory negligence in riding upon the platform of the motor. Germantown Pass. Ry. Co. v. Walling, 97 Pa. St. 55; Nolan v. Brooklyn City & Newtown R. Co., 87 N. Y. 63; Topeka City R. Co. v. Higgs, 38 Kan. 379; Matz v. St. Paul City R. Co., 52 Minn. 159; Geitz v. Milwaukee City R. Co., 72 Wis. 807; City Ry. Co. v. Lee, 50 N. J. Law, 438; Upham v. Detroit City R. Co., 85 Mich. 12. It is, on the other hand, as said in Pray v. Omaha St. Ry. Co., 44 Neb. 167, evidence of negligence on the part of a street railway company to carry passengers greatly in excess of the seating capacity of its trains, and permitting them to stand upon the platforms and steps of its cars. Again, street railway companies are, as was held in Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, and Pray v. Omaha St. Ry. Co., supra, common carriers, and, as such, are bound to exercise more than ordinary skill and precaution, in order to insure the safety of passengers upon their trains. The question of the plaintiff's alleged contributory negligence was fairly submitted to the jury, and the finding upon that issue will not be disturbed in this proceeding. This case is, upon the evidence adduced, clearly within the rule recognized in the authorities above cited. The plaintiff's witnesses agree that the train in question was crowded. to its utmost capacity, not only the space inside the cars, but the platforms of the motor and trailer. It is further shown that the defendant was in the habit of permitting passengers to stand in the aisles, and upon the platforms of its cars; and that Mr. Lazarus, who at the date named was acting in the capacity of assistant superintendent or train dispatcher, was present, and personally gave orders for the starting of the overcrowded train. True, there was evidence tending to prove the presence of a printed card notifying passengers not to stand upon the platforms, but there was, on the other hand, evidence that the card Railway Co. v. Godola. above mentioned was not posted until after the accident which resulted in the injury complained of. It is also claimed that the conductor protested against the appropriation of the platform by passengers, but upon that point also the evidence is conflicting, and, as we have said, sufficient to sustain the verdict. Complaint is made of the exclusion of evidence to prove that the defendant's line of road is constructed upon private property. The purpose of the evidence offered was, if we understand the position of counsel, to prove that the defendant company is not liable as a common carrier. But that proposition is not, it seems to us, entitled to serious consideration. The defendant, by undertaking to transport passengers for hire between Courtland Beach and the city of Omaha, assumed the relation towards its patrons of a common carrier, and the character of its easement in the right of way is wholly immaterial. Vide Bouv. Law Dict. tit. "Common Carrier;" Id. Rap. & L. Law. Dict. Judgment affirmed. NOTE.-See note to Danville St. Ry. Co. v. Payne, post. Wood v. Railroad Co. JAMES E. WOOD, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant. N. Y. Supreme Court, Appellate Division, Second Dept., May, 1896. (5 App. Div. 492.) ELECTRIC STREET RAILWAY-INJURY TO PASSENGER. The provision of the General Railroad Law (Laws 1850, Chap. 140, § 6), that a railroad company shall not be liable for injuries to passengers while riding on the platform, does not apply to street railroads. It is not contributory negligence per se for a passenger to ride on the foot rail of a trolley car, there being no room within. If the condition of the car, or the position of a vehicle standing in a street, be such as to apprise the motorman that there is reasonable liability of collision, even though it may be occasioned by the movement of the vehicle, it is negligence on his part to proceed. Case of this series cited in opinion, appearing in bold faced type: McGrath v. Brooklyn, &c. R. Co., vol. 5, p. 422. APPEAL by defendant from judgment of Supreme Court, Kings county, entered upon the verdict of a jury; also from order denying motion for new trial upon the minutes. Morris & Whitehouse, for the appellant. Elliott, Jones, Breckinridge & Dater, for the respondent. CULLEN, J.: This is an action to recover damages for personal injuries. The plaintiff entered as a passenger upon an open car of the defendant, which was so crowded that he was obliged to ride on the step that runs along side of that class of cars. As the car was proceeding on its course along Flatbush avenue, a team of horses, drawing a truck, was being watered at a trough along the curb. The team and truck stood somewhat diagonally Wood v. Railroad Co. in the street, the heads of the horses being at the trough and the rear end of the truck further out in the carriageway. As the car passed the truck the plaintiff was struck by the tailboard of the truck, knocked to the ground and injured. While one of the witnesses for the plaintiff testified that the truck did not move when the car was passing, the weight of the evidence tends to show that the truck was backed somewhat during that time. The motorman testified that the truck backed, but did not state for what distance. The conductor testified that there were three or four feet between the car and the truck. One of the witnesses for the defendant said the truck went back a couple of feet and another that "it did back a little." At the close of the evidence the defendant moved to dismiss the complaint, both on the ground of the contributory negligence of the plaintiff and that no negligence had been established on the part of the defendant. The motion was denied and the defendant excepted. The denial of this motion presents the only question to be considered on this appeal. The contributory negligence of the plaintiff was a question for the jury. In Vail v. Broadway R. R. Co. (147 N. Y. 377), the Court of Appeals definitely decided that the provision of the General Railroad Law of 1850 (chap. 140, sec. 46), that the company should not be liable for injuries to passengers while riding on the platform of a car, did not apply to street railroads. In McGrath v. Brooklyn, Queens Co., etc. R. R. Co., 87 Hun, 310, it was decided that riding on the side steps of the cars, where the cars were so crowded as not to permit the passenger to obtain a place within them, was not negligence per se. To the same effect are Clark v. Eighth Ave. R. R. Co., 36 N. Y. 135; Ginna v. Second Ave. R. R. Co., 67 id. 596; Nolan v. Brooklyn City & Newtown R. R. Co., 87 id. 63. We think also that there was evidence tending to show negligence on the part of the defendant, and that it was |