general rule, where specific instructions were not requested by a proper point, and no exceptions were taken to such as were given, there is no error for correction. Complaint is not now made of the charge respecting damages; the only errors alleged are the refusal of the defendant's points, and they were upon another branch of the case. Surely if the decedent's death, without fault in him, was caused by the defendant's default, the plaintiffs were entitled to recover. In a charge of marked accuracy and fairness the questions of defendant's negligence and of the decedent's concurrent negligence were submitted to the jury. It is not pretended that the court could have refused to submit to them to decide whether the defendant was negligent, and it is conceded that fact is settled by the verdict. If it was the duty of the court to determine there was contributory negligence by the decedent, all the defendant's points should be affirmed. This is the sole question now for consideration-the one first stated by defendant.

The facts, claimed to reveal want of due care in the decedent, are not in dispute. "He voluntarily got upon a car so crowded that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher and the other to the iron bar under the window of the car," so says the defendant. In addition the car stopped and received him as a passenger. The driver testifies he knew the car was so ful a man could not go through to the back platform. Crowded as it was, the conductor says there was room for more, both inside and on the rear platform. But Walling first tried to get on the rear platform, and failing went to the front.

Conductor, driver, and passengers acted as if there was room, so long as a man could find a rest for his feet and a place to hold on with his hands. Nor was that action exceptional. Notoriously, it was very common in 1876, and, perhaps, is not infrequent at this day. The companies do not consider such practice dangerous, for they knowingly suffer it, and are parties to it. Their cars stop for passengers when none but experienced conductors could see a footing inside or out. The risk in travelling at the rate of six miles an hour is not that when the rate is sixty or even thirty. An act which would strike all minds as gross carelessness in a passenger on a train drawn by steam power, might be prudent if done on a horse car. Rules prescribed for observance of passengers on steam railroads, which run their trains at great speed, are very different from those on street railways. In absence of express rules, every passenger knows that what might be consistent with safety on one would be extremely hazardous on the other.

Street railway companies have all along considered their platforms a place of safety, and so have the public. Shall the court

say that riding on a platform is so dangerous that one who pays for his standing there can recover nothing for an injury arising from the company's default?

Meesel v. Lynn & Boston R. R. Co., 8 Allen, Mass., 234, was a case much like this in its facts. The court said: "It is well known that the highest speed of a horse railroad car is very moderate, and the driver easily controls it, and stops the car by means of his voice, his reins, and his brake. In turning round an angle, from one street to another, passengers are not required to expect that he will drive at a rapid rate, but, on the contrary, might reasonably expect a careful driver to slacken his speed. The seats inside are not the only places where the managers expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand, inside, till the car is full, and then to stand on the platforms till they are full, and continue to stop and receive them, after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations, nor the managers of the cars, nor the travelling public seem to regard this practice as hazardous; nor does experience, thus far, seem to require that it should be restrained on account of its danger. There is, therefore, no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury upon the special circumstances which appeared in evidence." These remarks are quite applicable to the case in hand.

Standing on the front platform of a horse-car when there is room inside, is not conclusive evidence that the person injured by the driver's default was not exercising due care. Maguire v. Middlesex R. R. Co., 115 Mass., 239. A street railway company has the right to carry passengers on the platforms, and, if a passenger be injured while standing there without objection by the company's agent, whether the injury was with his contributory negligence is for the jury to decide, under all the facts and circumstances detailed in evidence. Burns v. Bellefontaine & St. L. R. R. Co., 50 Mo., 139.

It has also been decided in other states that, if a passenger be injured while standing on the platform of a street or horse car, the question of his contributory negligence is one of fact for the jury.

So little danger exists in riding on the platforms, accidents to passengers while thus riding are so rare, that this is the first time the question raised has been presented in Pennsylvania. We think the decisions in other states above referred to are sound. They accord with well-settled principles. What is and what is not neg ligence 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. When the standard shifts with the circumstances of the case, it is, in its very na

ture, incapable of being determined as a matter of law. When both the duty and the measure of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven. Westchester & Philadelphia R. R.Co. v. McElwee, 17 P. F. S., 311.

It is the duty of courts, in cases of clear negligence arising from an obvious disregard of duty and safety, to determine it as a question of law. This principle was applied in the numerous cases cited by defendant. It should always be when the admitted facts, or the proofs adduced by a party, conclusively show his negligence.

The undisputed facts in this case show that the measure of duty on the part of the deceased was ordinary and reasonable care, and what that was, and whether he complied with it, could only be determined by the jury.

Judgment affirmed.

The decision in this case is in consonance with the current of authority upon the point.

The cases seem generally to hold that when a passenger rides upon the platform of a horse-car for lack of room inside the car, and, while there, pays fare as any other passenger, and then receives an injury in consequence of the negligence of the company, the mere fact of being on the platform is not per se contributory negligence which will preclude recovery, but that the question whether it amounts to contributory negligence or not is for the jury. Clark v. Eighth Ave. R. R. Co., 30 N. Y., 135; Hardencamp v. Second Ave. R. R. Co., 1 Sweeny, 490; Augusta & Summerville R. R. Co. v. Rong, 55 Ga., 126.

The same doctrine was held to apply in a case where plaintiff was injured while standing on the broad steps of a sleigh by collision with another sleigh, it being in evidence that the conveyance was full, and that the company defendant were accustomed to allow persons to ride in that manner, and collect the usual fare from them. Spooner v. Brooklyn City R. R. Co., 54 N. Y., 230.

And when the plaintiff got upon a train of cars drawn by steam power, and failed to find a seat, and so remained upon the platform where he was injured by the negligence of the company, it was held that the question whether he was guilty of contributory negligence or not was for the jury. Willis v. Long Island Railway Co., 34 N. Y., 670. So when the plaintiff was standing on the front platform of an ordinary horse-car, it being shown that there were no seats, but plenty of standing room, inside the car, the same doctrine was held to apply. Gonna v. R. R., 8 Hun., 494. Some of the cases go still further.

In California it has been held that where the plaintiff was hurt while standing on the back platform of a passenger car with his hand on the rail, by collision with a passing vehicle, his position was not per se such contributory negligence as would prevent recovery against the owner of the colliding vehicle, but that the question was for the jury, and this although nothing appeared in the case to show whether the car was full or empty. Seigel v. Eisen, 41 Cal., 109.

In Massachusetts it has been held that the mere fact of riding on the front platform even where there is room inside the car, provided the conductor has demanded and received fare, is not such negligence per se as will preclude recovery for an injury occurring through the neglect of the company.

Maguire v. Middlesex R. R. Co., 145 Mass., 239. And in Missouri the same doctrine has been announced in a case devoid of the element of acquiescence to be derived from the demand and reception of fare. Burns v. Bellefontaine R. R. Co., 50 Mo., 139.

The cases are very clear indeed that if the conductor or driver solicit or permit passengers to ride on the platform then it certainly ceases to be negligence per se. M. Wilton v. R. R., 104 Mass., 108, the evidence showed that the driver had expressly invited and permitted the plaintiff to ride on the platform gratuitously. It was held that the question of her contributory negligence was for the jury. To the same effect are Sheridan v. Brooklyn City & Newtown Ry. Co., 36 N. Y., 39, where the plaintiff's decedent, a boy, was ordered by the conductor to leave his seat and to take a place on the front platform, where he received the injury; and Meison v. R. R., 8 Allen, 234, where the plaintiff was expressly instructed by the conductor to stand upon the front platform of a crowded horse-car. The same principle was applied in Indianapolis & St. Louis R. R. Co. v. Horst, 3 Otto, 291, where the plaintiff, a drover, was roused from sleep in a caboose car and ordered by the conductor to ride on the top of the cars until another caboose should be coupled, and was injured by a jolt while on top of the cars in persuance of this order.

See a somewhat analogous case to those already cited in Zomp v. W. & M. R. R. Co., 9 Rich. C. (S. C.), Law 84.

Of course there may be circumstances which render the plaintiff's conduct so culpable as to defeat his right of recovery. A forcible example occurs in Ward v. Central Park N. & E. R. Ry. Co., 42 How. Prac., 239, where the plaintiff, getting upon a car which was crowded, of his own mere notion stood on the extreme edge of the step, the day being slippery and the step full of ice, in consequence of which he fell off upon a jolt being occasioned by the carelessness of the company. It was held that though the mere fact of standing on the platform of a crowded car does not constitute such negligence as precludes recovery, that the peculiar position of plaintiff did, and that he was not therefore entitled to damages.

See Wasmer v. Delaware, etc., R. R. Co., 1 Am. & Eng. R. Cas., 122; Hanlon v. South Boston, etc., R. R. Co., ante.

ISABELLA WILLS, Administratrix,

V.

LYNN & BOSTON RAILROAD COMPANY.

(129 Massachusetts Reports, 351. September 10, 1880.)

A passenger, who receives an injury by falling from the front platform of a street railway car while in motion, upon which he occupies a sitting position, against the rules of the corporation and the warning of the driver of the car, and without any reasonable excuse therefor, is not in the exercise of such care as will entitle him to maintain an action against the corporation.

It is a reasonable regulation of a street railway corporation, which it has the right to make, that passengers shall not be on the front platform of a

car.

Tort against a street railway corporation, for personal injuries occasioned to John Wills, the plaintiff's intestate, by falling from the defendant's car. Trial in the Superior Court, before Wilkin

son, J., who directed a verdict for the defendant, on the ground that the plaintiff had not offered any evidence sufficient to warrant the jury in finding that her intestate was in the exercise of due care at the time of the accident; and reported the case for the determination of this court. The facts appear in the opinion.

B. E. Perry and C. P. Gorely, for the plaintiff :

The question of due or ordinary care is one to be determined by a jury, not the court, unless in those cases where the facts so fully appear that no inferences of fact remain to be drawn from the evidence. Spofford v. Harlow, 3 Allen, 177; Bigelow et ux. v. Rutland, 4 Cush., 247; Goodale v. Worcester Ag. Soc., 102 Mass., 406; Gaynor v. O. C. & N. R. R., 100 Mass., 208; Mayo v. B. & M. R. R., 104 Mass., 137; Maguire v. Middlesex R. R., 115 Mass., 239; Meesel v. Lynn & Boston R. R., 8 Allen, 234; Spofford . Harlow, 3 Allen, 176; Murphy et ux. v. Deane et al., 101 Mass.,

455.

W. W. Warren, for the defendant:

This evidence not only fails to show that Wills was in the exercise of due care, but on the contrary, shows affirmatively that he was extremely careless, and that too in the face of an express warning, and in an entire disregard of notices posted in full sight of the place where he had been standing before he sat down on the platform, his attention having been called to the rules contained in said notices. Gilman v. Deerfield, 15 Gray, 577; Baltimore City Passenger R. R. v. Wilkinson, 30 Md., 224.

The court will take notice of the well-known hazards of travelling, and the dangerous position in which the plaintiff's intestate put himself. 1 Greenleaf Ev., last part of § 6; Gavett v. Manchester, etc., R. R. Co., 16 Gray, 501; Todd v. Old Colony, etc., R. R. Co., 3 Allen, 18. Upon the above evidence, it was the clear duty of the court to decide, as it did, that the plaintiff had not offered any evidence sufficient to warrant the jury in finding that the plaintiff's intestate was in the exercise of due care at the time of the accident. Gilman v. Deerfield, ubi supra; Gavett v. Manchester, etc., R. R. Co., 16 Gray, 501; Gahagan v. Boston, etc., R. R. Co., 1 Allen, 187; Todd v. Öld Colony, etc., R. R. Co., 7 Allen, 207; Hickey v. Boston, etc., R. R. Co., 14 Allen, 429.

Whether the very conflicting testimony reported, which related to the rate of speed at which the car was moving, had any tendency to show negligence on the part of the defendant, is wholly immaterial. Butterfield v. Western R. R. Co., 10 Allen, 532.

COLT, J.-It is for the plaintiff to prove that her deceased husband was free from negligence contributing to the injury which he received from the acts of the defendant corporation. She cannot recover if the case she presents fails to disclose the exercise on his part of ordinary care, as judged of in the light of common knowl