are in the habit of smoking are often invited by the conductor of street cars to ride upon the platform while smoking, so as to avoid annoying passengers inside. On the principle of the foregoing text, a passenger so invited and so riding, even on the front platform, and who is thrown off and injured by a sudden jerk of the car, is not deemed guilty of negligence as matter of law, although there is room to ride inside;175 and it seems that this is so, although the smoker may not be riding on the front platform by the invitation of any servant of the carrier.176

§ 2955. Riding on the Platform of a Street Car when there is no Room Inside. The conclusion that it is not negligence per se for a passenger, even a woman,177 to ride on the platform of a street car, is even more clear where, as generally happens in the morning and evening, all the street cars are so crowded that passengers are obliged so to ride or else not get to their business or their homes at all; and especially where passengers are permitted so to ride by the conductor in charge of the car.178 On the other hand, where a passenger is impliedly invited so to ride, the carrier is bound to take additional precautions for his safety in view of the fact that he is so riding. Thus, where a female passenger attempts to ride upon the platform because she is unable to get a seat within the car, even if negligence were properly imputable to such an act, nevertheless the railway company will be liable if its servants, knowing her situation, and consequent danger, may, by the exercise of reasonable care under the circum

evidence under which the case was for the jury). It has been held that a street railway company is not chargeable with negligence toward a passenger who is crowded off the platform of a car by other passengers, where there was plenty of room inside the car, although he had assumed such a position after notifying the conductor to stop at a certain street, which was not done, and the accident occurred while he was waiting for the next street to be reached: Glyn v. New York &c. R. Co., 85 Hun (N. Y.) 408; s. c. 32 N. Y. Supp. 1021; 66 N. Y. St. Rep. 426. Compare Graham v. Manhattan R. Co., 149 N. Y. 346; reversing s. c. 8 Misc. (N. Y.) 305; 59 N. Y. St. Rep. 279; 28 N. Y. Supp. 739. It has even been held that it is not negligence as matter of law for a passenger to ride on the rear platform of an electric car, although he knows that a seat can be found in

side: Thayne v. Scranton Traction Co., 8 Pa. Super. Ct. 446.

175 Hastings v. Central &c. R. Co.. 7 App. Div. (N. Y.) 312; S. c. 29 Chic. Leg. News 26; 40 N. Y. Supp. 93.

176 Seelig v. Metropolitan St. R. Co., 18 Misc. (N. Y.) 383; s. c. 41 N. Y. Supp. 656.

1 Noble v. St. Joseph &c. St. R. Co., 98 Mich. 249; s. c. 57 N. W. Rep. 126.

178 Metropolitan R. Co. v. Snashall, 3 App. (D. C.) 420; s. c. 22 Wash. L. Rep. 377; Seymour v. Citizens' R. Co., 114 Mo. 266; s. c. 21 S. W. Rep. 739; Brusch v. St. Paul &c. R. Co., 52 Minn. 512; s. c. 55 N. W. Rep. 57: Marion St. R. Co. v. Shaffer, 9 Ind. App. 486; s. c. 36 N. E. Rep. 861; Babcock V. Los Angeles Traction Co., 128 Cal. 173; s. c. 60 Pac. Rep. 780 (passenger thrown from the platform by a lurch of the car in going around a curve).

curve, 180

stances, avoid injuring her. 179 And the same reasoning has been held applicable to the case where a passenger, while standing on the platform because he is unable to get a seat inside, is thrown off while the car is rounding a curve, by the negligence of the persons in charge of the car in failing to check or slacken the speed in approaching the The doctrine of this paragraph is not confined to horse railroads; but it has been held that contributory negligence can not be predicated, as matter of law, of the act of a passenger upon an electric car in standing upon the platform of the car, where the car is crowded at the time and there is no room for him on the inside.181 Where there is no other available space on the car, a passenger who rides on the front platform outside the gate, will be excused from the imputation of negligence.1

182

$2956. When Standing on Street Car Platform Contributory Negligence. On the other hand, it is obvious that circumstances may exist under which contributory negligence will be imputable to a passenger who attempts to ride upon the platform of a street car,—as where the car is overcrowded at the time when he makes the attempt, or possibly in the case of a car propelled by electricity and at a high rate of speed. It is obvious enough that there can be no recovery for injury sustained by a passenger on a street car platform, where standing thereon is an act of carelessness or a failure to exercise such care as men of ordinary prudence would exercise under the same circumstances. 183 Accordingly, it has been held that a passenger on an electric motor car is guilty of contributory negligence in voluntarily riding on the steps of the front platform.184 The same has been held in the case of a passenger injured by coming in contact with a post near the track, while hanging on the platform of a dummy car, when he knew of the post and might have gone inside the car.185 So, it has been held that a passenger on a street railway car, who goes upon the front platform on a cold night when the tracks are icy and slippery, while there is ample room for him to sit in the car, is

179 Metropolitan R. Co. v. Snashall, 3 App. (D. C.) 420; s. c. 22 Wash. L. Rep. 377.

190 Brusch v. St. Paul City R. Co., 52 Minn. 512; s. c. 55 N. W. Rep. 57. 181 Marion Street R. Co. v. Shaffer, 9 Ind. App. 486; s. c. 36 N. E. Rep. 861.

-182 Seymour v. Citizens' R. Co., 114 Mo. 266; s. c. 21 S. W. Rep. 739.

183 Beal v. Lowell &c. St. R. Co., 157 Mass. 444; s. c. 32 N. E. Rep. 653. To the contrary, see Hastings v.

Central &c. R. Co., 7 App. Div. (N. Y.) 312; s. c. 29 Chic. Leg. News 26; 40 N. Y. Supp. 93; Seelig v. Metropolitan St. R. Co., 18 Misc. (N. Y.) 383; s. c. 41 N. Y. Supp. 656.

184 Francisco v. Troy &c. R. Co., 78 Hun (N. Y.) 13; s. c. 60 N. Y. St. Rep. 797; 29 N. Y. Supp. 247; Bradley v. Second Ave. R. Co., 90 Hun (N. Y.) 419; s. c. 70 N. Y. St. Rep. 622; 35 N. Y. Supp. 918.

185 Aikin v. Frankford &c. R. Co., 142 Pa. St. 47; s. c. 21 Atl. Rep. 781.

guilty of contributory negligence preventing a recovery for his death from being hurled from the platform by a violent jerk of the car.156 One of the departments of the Supreme Court of New York has held that a passenger on an electric railway car is not, as matter of law, guilty of contributory negligence in standing on the platform of the car and putting his head beyond the side of the car, in which position it comes in collision with a tree standing a few inches from the side of the car, the passenger knowing or being under the duty of knowing the close proximity of trees.187 Another court has reasoned that, while it is not negligence as matter of law for a passenger to ride on the front platform of a street car,-yet one who voluntarily so rides, assumes the usual and ordinary dangers of his position,— such as the risk of being thrown from the car by a sudden movement caused by the horses plunging forward when struck by the whip in the driver's hand.18 188

§ 2957. Riding on Steps or Footboard of Street Car.-To ride on the platform step of an ordinary horse car is obviously more dangerous than to ride on the platform, owing to the greater danger of being jostled off by other passengers, or of coming in contact with vehicles or other objects on the street; and obviously it is still more dangerous to ride on the side step of an electric or cable car. Nevertheless, the courts refuse to impute contributory negligence, as matter of law, to a passenger from the mere fact that he rides in either position; since in many cases the car will be so crowded that he must ride that way or not at all;189 and this is especially so where those in charge of the car or train make no objection to his riding in that position.199 On clearer grounds, contributory negligence is not imputable to a passenger from the fact that he gets upon the rear step of a street

186 Bradley v. Second Ave. R. Co., 90 Hun (N. Y.) 419; s. c. 70 N. Y. St. Rep. 622; 35 N. Y. Supp. 918.

187 Sias v. Rochester R. Co., 92 Hun (N. Y.) 140; s. c. 71 N. Y. St. Rep. 148; 36 N. Y. Supp. 378. But this decision was reversed by the Appellate Division, which took the view that the passenger was guilty of contributory negligence as matter of law: 15 App. Div. (N. Y.) 506. From this decision an appeal was taken to the Court of Appeals, which appeal was dismissed: N. Y. 567 (mem.).

159

188 Cassidy v. Atlantic Ave. R. Co., 9 Misc. (N. Y.) 275; s. c. 29 N. Y. Supp. 724; 61 N. Y. St. Rep. 149.

189 Kinkade v. Atlantic Ave. R. Co., 9 Misc. (N. Y.) 273; s. c. 61 N. Y. St. Rep. 323; 20 N. Y. Supp. 747; s. c. aff'd 149 N. Y. 615; Bruno v. Brooklyn City R. Co., 5 Misc. (N. Y.) 327; s. c. 55 N. Y. St. Rep. 215; 25 N. Y. Supp. 507; s. c. aff'd 147 N. Y. 711; McGrath v. Brooklyn &c. R. Co., 87 Hun (N. Y.) 310; s. c. 34 N. Y. Supp. 365 (car crowded to overflowing. and passenger invited so to ride by the persons in charge of the car). · 190 Cogswell V. West Street &c. Electric R. Co., 5 Wash. 46; s. c. 52 Am. & Eng. Rail. Cas. 500; 7 Am. Rail. & Corp. Rep. 48; 31 Pac. Rep. 411.

car in preparation to alight, after he has requested the conductor to stop the car.19

It

§ 2958. Riding in Express or Baggage Car.-Upon the question whether contributory negligence is to be ascribed to a passenger who is hurt while riding in the baggage or express car under such circumstances that he would not have been hurt if he had remained in a passenger car, there is a considerable conflict of judicial opinion. is no doubt a reasonable regulation that passengers shall not ride in the baggage car. The safety of the passenger, the unimpeded discharge of duty by the company's servants, and the security of the property conveyed therein, are considerations in support of this rule. Moreover, all passengers are probably aware that the hazards of travel are increased by riding in this portion of the train. Prima facie, therefore, a passenger who, unless excused by special circumstances, elects to ride in the baggage car, instead of remaining in one of the passenger coaches,-assuming that there is room for him there,— commits an impropriety of such a character that, in case he is injured while so riding, and the circumstances are such that he would not have been injured if he had remained in one of the passenger coaches, he will be precluded from recovering damages from the company,192-unless it appears that he is riding there by permission of the conductor for the benefit of the company.' If, on the other hand, the fact of his taking this improper position does not increase his danger in respect of the accident in which he is

191 Bowie v. Greenville Street R. Co., 69 Miss. 196; s. c. 10 South. Rep. 574. So, it has been held that a passenger upon a street car is not guilty of negligence, contributing to his injury, by being struck by another car going in an opposite direction, owing to the fact that the tracks were too near each other for safety, and that the inner rails were depressed so that the upper portions of the cars were tilted towards each other, in standing upon the outer rail or step, where that is the only apparently unoccupied place when the car stops to take him up, and he is ignorant of the condition of the tracks: Herdt v. Rochester City &c. R. Co., 48 N. Y. St. Rep. 46; s. c. 20 N. Y. Supp. 346; s. c. aff'd 142 N. Y. 626. But it has been held that a passenger on a street car, who, shortly before a crossing is reached, and while the car is run

193

ning at a speed exceeding six miles an hour, stands upon the lower step of the car without taking hold with either hand until its speed is suddenly increased, is guilty of contributory negligence sufficient to defeat a recovery, in an action by him for injuries caused by falling or being thrown to the ground: Tanner v. Buffalo R. Co., 72 Hun (N. Y.) 465; s. c. 54 N. Y. St. Rep. 776; 25 N. Y. Supp. 242.

102 Kentucky &c. R. Co. v. Thomas, 79 Ky. 160; s. c. 42 Am. Rep. 208; Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898; Pennsylvania &c. R. Co. v. Langdon, 92 Pa. St. 21; s. c. 37 Am. Rep. 651; Houston &c. R. Co. v. Clemmons, 55 Tex. 88; s. c. 40 Am. Rep. 799.

193 Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898; citing O'Donnell v. Allegheny &c. R. Co., 59 Pa. St. 239.

injured, in other words, if his injury is not due in whole or in part to that fact, then there is no causal connection between his negligent or improper act and the hurt which he has received, but the responsibility must be attributed entirely to the negligence of the carrier, if negligence there be.194 That is to say, if the fact of his being in the baggage car is not, in whole or in part, the cause of the injury which he receives, it will not prevent him from recovering damages. 195 Other decisions are found which tend to excuse such acts of passengers and to leave the question of their negligence to the jury.196

§ 2959. Exception where the Duties of the Passenger Require him to Ride in the Baggage or Express Car.-Exceptions to the rule that contributory negligence may be imputed to the passenger for riding in the baggage or express car, have been declared in three cases: 1. Where the duties of the passenger require him to ride in such car, or to be there at the time of the accident.197 Somewhat in line with this, it has been held that a railway postal clerk is not imputable with contributory negligence because of his riding in the mail car, although he is not on duty at the time, in the absence of any rule of the company forbidding him so to do; and this is especially so where he is so riding for the purpose of rendering voluntary assistance to another mail clerk in the assortment and distribution of his mail.19

194 Jones v. Chicago &c. R. Co., 43 Minn. 279; s. c. 45 N. W. Rep. 444; Webster v. Rome &c. R. Co., 115 N. Y. 112; s. c. 23 N. Y. St. Rep. 778; 21 N. E. Rep. 725; Fremont &c. R. Co. v. Root, 49 Neb. 900; s. c. 69 N. W. Rep. 397.

195 Fremont &c. R. Co. v. Root, 49 Neb. 900; s. c. 69 N. W. Rep. 397.

196 For example, a passenger went into the baggage car to smoke. While there the train ran into a freight car which had been placed upon the main track, from a siding, where it had been left unsecured. The question whether the passenger was guilty of negligence preventing his recovery for an injury thus caused, by reason of being in the baggage car, and the further question whether the railroad company was guilty of negligence in leaving the freight car on the side track unsecured, were held to be proper questions for the jury: Webster v. Rome &c. R. Co., 40 Hun (N. Y.) 161; s. c. aff'd 115 N. Y. 112. It has been held that a passenger on a rail

road train who voluntarily leaves his seat in a passenger coach, and goes into the baggage car, and afterwards undertakes to return, is not, as matter of law, guilty of such contributory negligence as will prevent recovery for his death caused by the negligence of the company in failing to have a platform at the end of the baggage car: Louisville &c. R. Co. v. Berg, 17 Ky. L. Rep. 1105; S. C. 32 S. W. Rep. 616 (not to be rep.). Neither is a person guilty of contributory negligence, as matter of law, who goes on the front platform of a baggage car, when the train is moving at only three or four miles an hour, in order to keep an appointment, and who remains on the platform on finding the door of a car locked. until a collision occurs in which he is injured: Illinois &c. R. Co. v. O'Keefe, 63 Ill. App. 102.

197 Galveston &c. R. Co. v. Parsley. 6 Tex. Civ. App. 150; s. c. 25 S. W. Rep. 64.

198 Baltimore &c. R. Co. v. State,