see that his use of a cane, and his temporary use of the crutch on that day, relieves the company from the liability caused by this act of gross negligence on their part. It appears from the evidence, that the driver of the car was temporarily employed for the time of the reunion, and was probably inexperienced by want of former employment in this line of work, although the company kept him in their employment after the accident, and up to the time of the trial of the cause. It is said that he could have seen the car coming on the main track, and avoided the injury by the exercise of ordinary caution. This is a dangerous assumption for the plaintiff in error. It is virtually saying that the use of his eyes ought to have made it apparent that the company was about to commit an act of gross negligence; but as he says he did not see the car until a moment before the injury occurred, we would much rather assume, for the sake of the employees on both cars, that the risk was not so imminent as to be seen and apprehended by the passengers. As a matter of fact, he did not see the danger until it was too late to avoid it. He was not guilty of contributory negligence in respect to any of the acts and matters ålleged. ty of gross It must be held that when a street-railway company undertakes to carry large numbers of people, vastly in excess of the seating capacity of their cars, and permit passengers to ride on the platforms and foot-boards, Company gullwithout objection, and collect fare from them, negligence. and stop their cars when in such a crowded condition that no seats are attainable, and permit persons to get upon them to be carried from place to place, and when the cars are in such a crowded condition, with passengers riding on the foot-boards, place them so near the intersection of a switch with the main track that they cannot pass without injury to passengers, the company is gnilty of gross negli gence. required-In 1. There is very vigorous criticism of some instructions given, and of the refusal to give others, as requested by the plaintiff in error, but the important question to be solved is presented by the third instruction given, Degree of care to wit: "Carriers of passengers are bound to ex- struction. ercise all possible skill, foresight, and care in the running of their cars, so that passengers may not be exposed to danger on account of the manner in which the cars are run." It is said that this places the degree of care required of a street-railway company too high, and hence it was error. Admitting that this instruction does hold the street-railway company to a too strict rule of diligence, and yet, as we view the evidence on the whole record, we would still hesitate to reverse the case. We doubt if it would have been error in the trial court to have instructed the jury, as a matter of law, that the plaintiff was guilty of gross negligence in running their cars, for several reasons: Negligent character of act complained of. 2. The question of negligence in this case is to be determined very largely by the character of the act, and not by the character for care and caution which the streetrailway company may sustain, or by the care and caution they were trying to exercise generally on this particular occasion. The negligence complained of here was the commission of such an act, to wit, the placing of the car on the switch so near the point of intersection with the main track that the most ordinary mind could see that injury would follow to those standing on the foot-boards. It seems that the evidence offered by the street-railway company aggravates, rather than excuses, the negligence. It is, in substance, that there was another car going north, and following the one the injury occurred on, and that it was necessary to drive the first so far north on the switch, so as to allow the one that was following room on the switch to pass the south-bound car on the main track. This is a demonstration that the switch was not properly constructed, that it was too short, or that it was intended for only one car, and ought not to have been used by both cars going north. In either event, it shows negligence on the part of the company. The superintendent of the company testifies that the length of the switch was 217 feet, from point to point; that from the north point of the switch, running south, the radius of increase of the width between the switch and main track, for the first 40 feet, is 1 inch to the foot; for the next 20 or 30 feet there is not so much increase, as it then approached a straight line, parallel with the main track; that the cars could pass each other, and not touch, when the front end of the car on the switch was 26 feet from the point where the switch left the main track. It is from 70 to 72 feet from the points of intersection where the switch commences to curve in for the purpose of running on the main track. This leaves a length of switch, with an equal distance from the main track, of 48 feet, the distance from the main track being not quite 2 feet. A person riding on the footboard would be perfectly safe at any point on the switch until after it curves towards the main track. The skill, care, and precaution of drivers, conductors, and the superintendent generally amounts to nothing, in view of the plain fact that this car was driven too far north on the switch. It was this act, in this particular case, that was the direct and immediate cause of the injury. The defendant in error had a right to presume due care on the part of the railway company. He was riding on the car in a position allowed to be occupied by other passengers on like occasions. He had no control over the employees of the company, and no knowledge of the switch, or that the company was using it beyond its safe and reasonable capacity, but had the undoubted right to rely on the exercise of ordinary prudence by the streetrailway company, both as to the use of the switch, and the management of their cars in the act of passing each other, when one or both were crowded with passengers. The fact that the cars, both in motion, came so near each other in the act of passing that the injured man was pressed by them,squeezed in between them,-is not in dispute. Hence we saw that if the court below had charged the jury, as a matter of law, that this was gross negligence on the part of the street-railway company, we would hesitate to say it was error; but, as that was not done, we will consider the instruction, and determine whether or not it stated the rule of diligence. 66 Street railways-"All possible care" ble fore- Cars drawn by horses upon rails are, in the main, governed by the same rules as other vehicles. Shear. & R. Neg. (3d Ed.) 312. In an action to recover damages for personal damages sustained as a passenger in a stagecoach, the court has approved an instruction that stated "that a stage-coach proprietor, who carries "All possipassengers for hire, is responsible for all accidents and injuries happening to passengers which might have been prevented by human care and foresight." Sawyer v. Sauer, 10 Kan. 466. So that the only objection to the instruction given in this case results from the use of the word "possible," and it means "liable to happen or come to pass;" capable of existing or of being conceived or thought of;" capable of being done;" "not contrary to the nature of things." Webst. Dict. "All possible skill and care" imply that every reasonable precaution in the management and operation of street cars be used to prevent injuries to passengers; they mean good tracks, safe cars, experienced drivers, careful management, and judicious operation in every respect. All possible foresight" means more than this; it means anticipation, if not knowledge, that the operation of street cars will result in danger to passengers, and that there must be some action with reference to the future; a provident care to guard against such occurrences; a wise forethought and prudent provision that will avert the threatened evil, if human thought or action can do so. Is it possible that the thought never occurred to any one of the persons operating this street-railway that a car on the main track and one on the switch would run so close together that they would collide, or that some one might be injured by their proximity? The instruction, as applied to the particular facts of this case, is not objectionable. Its phraseology may not be felicitous, but it does not practically require any greater or higher degree of care than if the expression used had been "the highest" or "the utmost," and these are frequently found in the reported cases. 99 66 The case of Tuller v. Talbot, 23 Ill. 357, cited by plaintiff in error, is a case of injury by a stage-coach, and the court say: "Common carriers of persons are required to do all that human care, vigilance, and foresight reasonably can under the circumstances, in view of the character and mode of conveyance adopted to prevent accident to passengers.' All that human care can do is the "highest," " utmost,' possible" effort. The case of Meier v. Railroad Co., 64 Pa. St. 226, is one in which a passenger in a sleeping-car was injured by the axle of the forward truck of the car breaking by reason of a latent defect in its construction, not discernible by those who were skilled in such matters, and has no application here, the facts being entirely different; and yet the court say in that case: "The carrier may relieve himself by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could prevent." The supreme court of the United States, in their opinion in the case of Railroad Co. v. Derby, 14 How. 468, say: "When carriers undertake to convey persons by the powerful, but dangerous, agency of steam, public policy and public safety require that they be held to the greatest possible care and diligence." In that case it was the greatest possible care and diligence in the management of steam cars; in this case it is all possible skill, foresight, and care in the use of horse cars. Both of these expressions are used with reference to the character and modes of conveyance adopted in either case. They are similar in meaning and in legal effect, and yet are not to be understood to require that the same preventive measures or wise precautions that are taken by those directing the operation of steam cars must be taken by those in charge of horse cars, but they do mean that the best effort of the minds directing the operation and supervising the management of steam cars and of horse cars, shall be diligently applied in devising ways and means to prevent injuries to passengers being carried thereon. Steam cars may require greater care in their management, and greater caution in their operation, but the passengers are entitled to the highest possible degree of each. So those riding on street cars have the legal right to insist that they shall be managed and ope. rated with all possible skill, care, and foresight which in their nature they are capable of. The theory of counsel for the plaintiff in error seems to be that the rule of highest skill can only be applied to cars propelled by steam, because it is the most dangerous of all modes of conveyance. We think that the rule applies to street cars, and other vehicles drawn by horses, to its full extent; the difference being in the means and instrumentalities used to prevent accident, by reason of the mode, rather than to the degree, in which the preventive means are to be employed. To each must be applied the greatest degree of skill, care, and foresight to which they are susceptible, to avoid liability for injuries occasioned in their operation. We think there is no error in the instructions given, and no error in refusing the instructions asked for. in riding on step. 3. Objection is made to instructions 4 and 6, wherein the court instructs the jury that the mere fact that the plaintiff, Higgs, was riding on the step of the car would not defeat his right to recover, if it it was customary Instruction as to ride there and the car was so crowded he could to negligence not procure a seat, and if he rode there without objection from the conductor or other employee of the company; and it is said that they were clearly wrong, because there was no evidence of any permission to ride on the step, and because the evidence was undisputed that the plaintiff, Higgs, had been distinctly warned against riding there; and the case of Huelsenkamp v. Railway Co., 34 Mo. 45, is cited, and claimed to be decisive of this question. What are the facts as developed by the witnesses produced by the plaintiff in error? The superintendant says, "I said to Higgs, 'Don't try to get on the cars while there is such a rush. As soon as I can, I will get you a seat,'" but he never did anything more than to talk to him; made no effort to furnish a seat. It is not in terms a warning not to ride on the footboard; it is an expression of fear that, as he was crippled, he might get hurt in the rush, coupled with a promise to get him a seat. He did not get hurt in the "rush," and he did not get a seat. The superintendent also stated that at the reunion it was customary for persons to ride on the foot-boards, on the platform of the cars, and even on the top of the cars, and that the conductors collected fare from them wherever they rode, but they were requested not to so ride by him. On all cars that started after he had promised Higgs to get him a seat, persons were riding on the foot-boards; that upon all the cars coming to and going from the city the company allowed men, women, and children to continuously ride upon the front platform, the rear platform, and also upon the foot |