Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant's servants. A verdict was rendered for the plaintiff and judgment entered thereon by the trial court. Defendant appeals from the judgment of the general term affirming. The facts are stated in the opinion.

Morris & Pearsall for appellant.

E. B. Converse for respondent.

for the

Facts.

DANFORTH, J.-the defendant was incorporated for the business of owning and operating horse cars carriage of passengers for hire. The plaintiff alleges that while lawfully attempting as an intending passenger to get upon one of the defendant's "downcars," and actually being on one of the steps to its platform, he was thrown from it toward the street, and in that way and by collision with another, or "up-car" of the defendant, moving in the opposite direction, was severely injured. Concerning these alleged facts there is no doubt.

The defendant, by its answer and evidence, raises two questions:

1. Whether the negligence of its servant caused the injury; 2. Whether the plaintiff contributed to it.

It appears that the plaintiff in due season signalled the approaching or " down-car," and it stopped; that as he was getting on board, having one foot on the lower step, the car, on the signal of the conductor, was suddenly started. His further ascent was thus interrupted, and by the rapid motion of the car he lost his foothold and was thrown off. He shows that the platform was crowded, and that by reason of the sudden. shock he was unable to reach it with either foot or get hold of the hand rail. Whether by either of those circumstancesthe condition of the platform, his omission to take the rail, or enter upon the platform-he was in fault Jury find or acted negligently, was submitted to the jury and, negligent. as their verdict shows, was answered in his favor. The proposition depended upon conflicting evidence, and was therefore a question of fact, as was also the other, viz.: the negligence of the defendant's servant on that car, and by the opinion of the jury this court is bound. Clark v. Eighth Ave. R. Co., 36 N. Y. 135; Hayes v. Forty-second St., etc., R. Co., 97 N. Y. 259.

plaintiff not

It was undoubtedly the duty of the defendant, in the exercise of its franchise, to offer to intending passengers a reasonable opportunity safely to board their cars. The charge did not go further; and the evidence warranted a conclusion that such care was not exercised toward the plaintiff, and that the

servants on

roneous.

plaintiff himself was not in fault. The trial judge, however, called the attention of the jury to the plaintiff's alInstruction as legation in relation to the conduct of the servants to conduct of in charge of the " up-car," and refused to charge as up car" er requested by defendant's counsel: "That negligence could not be predicated on anything the driver of that car did or omitted to do.' Upon this refusal the appellant alleges error. The learned judge said, “As to the up-car, the only allegation of negligence concerning the management of that vehicle is that the driver did not perceive, when he ought to have perceived, the plaintiff falling from the car that was coming down," and then said: "If the driver fulfilled the duty which was incumbent upon him, to keep a vigilant watch on his team and of the road ahead, so as to avoid injuring anyone, he performed his whole duty," adding: "The driver himself tells you that he was looking straight ahead at his team; it is for you to say whether, under the cir cumstances, if the driver of the up-car was doing that, he did not do his whole duty."

We find no evidence as to the conduct of this driver which would permit any other conclusion so far as his duty to the plaintiff is concerned. There is indeed testimony that his way, being blocked by a coach intruding upon the track, the driver of the up-car was speaking to or chaffing with its master at the very moment of or just before the accident; but we find no connection between that circumstance and the plaintiff's injuries. It does not appear to have affected his management of the car, nor that the management was in any respect other than circumstances in which he was placed required. The complaint, however, alleged negligence in the conduct of the up-car as well as negligence in the management of the down-car. Both charges were submitted to the jury, the last, as we have said, properly; the other, in respect to the "up-car," we think improperly, it having no fact for its support; and, as we cannot tell on which alternative of the charge the jury founded their verdict, we are of opinion it cannot be supported.

The judgment should therefore be reversed and a new trial granted, with costs to abide the event.

All concur.

TOPEKA CITY R. Co.

ย.

HIGGS.

(Kansas Supreme Court, January 7, 1888.)

64

Passengers-Street Railway-Duty of Company-Negligence. - A streetrailway company using cars, drawn by horses, upon rails, carrying passengers for hire, are bound to exercise 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. All possible skill and care" implies that every reasonable precaution in the management and operation of street cars be used to prevent injuries to passengers. The phrase means good tracks, safe cars, experienced drivers, careful management, and judicious operation in every respect. "All possible foresight 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.

Same-Rule in Kansas-Different Kinds of Vehicles.-This rule applies in this State to all vehicles used to carry passengers for hire, the only difference being in the means and instrumentalities used (these being adapted to the particular mode of conveyance), rather than to the degree in which the preventive means are to be applied. To each and every method of carrying passengers for hire must be applied the greatest skill, care and foresight to which they are in their nature susceptible, to avoid liability for injuries occasioned by their operation. The best effort of the minds directing the operation of horse cars must be diligently applied in devising ways and means to prevent injuries to passengers being carried thereon.

Same-Passengers Carried on Platform-Crowding-Gross Negligence. -When a street-railway company undertake to carry large crowds of people, vastly in excess of the seating capacity of their cars; and permit passengers to ride on the platforms and foot-boards of their cars, without objection, and collect fare from them; stop their cars when in such a crowded condition that no seats are obtainable, 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, the employees of the company run the cars so near the intersection of a switch with the main track that the cars on each cannot pass without injury to passengers,—the company is guilty of gross negligence.

ERROR to District Court, Shawnee County.

Action commenced in the district court of Shawnee county, on the eighteenth November, 1885, by Charles Higgs, against the Topeka City R.Co., for injuries sustained while a passenger on one of the company's cars, by the negligence of the

34 A. & E. R. Cas.—34

defendant railway company. Tried at the April term, 1886, to a jury, and a general verdict and judgment for $200 in favor of Higgs. There was a demurrer to the evidence of the plaintiff overruled. A motion for a new trial was also overruled. It is claimed that the court below erred in not granting a continuance; in admitting certain testimony for the defendant in error; in giving certain instructions asked for by the defendant in error; and in refusing instructions submitted by the plaintiff in error.

The jury, in response to particular questions of fact, submitted by the court at the request of the plaintiff in error, is found as follows: "(1) Was not plaintiff, at the time he got hurt, standing on the outside and side platform of an open car, No. 19, with one arm around a side standard, and the other holding to the seat, or, if not, how and where was he standing? Answer. Yes. (2) Was not car No. 19 at a standstill at the time plaintiff got hurt? A. No. (3) At the time plaintiff got onto car No. 19 for passage, was there not a seat which the plaintiff could have taken? A. No. (4) Was not plaintiff requested by the superintendent of defendant not to get onto the crowded cars in his crippled condition, but to wait, and he, the superintendent, would get him a seat? A. Yes. (5) Did not the driver or conductor of car No. 19, after plaintiff got on for passage, at the time of the injury, request the plaintiff to come into the car and take a seat? A. No. (6) Had not the plaintiff been hurt about September 2, 1885, by falling from the top of the balustrade of the Valley House to the pavement, and did it not at the time he got hurt on the street car require him to use a crutch and cane; and what was the distance of such fall? A. Yes; no; 14 feet two inches. (7) Did not plaintiff, in a crippled condition, using a crutch and cane, go upon car 19 for passage, and of his own motion, knowingly and intentionally, stand on the outside side platform, holding onto the post and seat to enable him to stand? A. Yes. (8) What was the distance between cars 3 and 19 at the time and place where plaintiff got hurt? A. We cannot arrive at the exact distance. (9) State what accidents had occurred to the plaintiff previous to the injury complained of? A. The accident at the Valley House, and the accident when plaintiff's ladder broke, and he fell into an apple tree."

INSTRUCTIONS.

The instructions given, that are complained of, are as follows:

"First. The negligence of an agent or servant of the com

pany is the negligence of the company. If, therefore, you find from the evidence in this case that the injury to plaintiff was caused by the negligence of the employees of the company, then I instruct you that such negligence of the employee is the negligence of the defendant.

"Second. If you find from the evidence that the plaintiff was injured by a collision between two of defendant's cars, while a passenger thereon, then I instruct you that the colliding of the cars of defendant is presumptive evidence of neg ligence on the part of the company.

"Third. Carriers of passengers are bound to exercise 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.

Fourth. If plaintiff got upon defendant's car, in company with his cousin, for the purpose of taking passage thereon, and, on account of the crowded condition of the car, plaintiff was unable to procure a seat, and remained standing on the foot-board of the car without any objection from the conductor or other employee of the company, and that while riding at that point he was injured by reason of a collision of defendant's cars, then I instruct you that the mere fact that plaintiff was riding upon the foot-board of the car will not exonerate defendant from liability.

"Fifth. If plaintiff was on the car, ready and willing to pay his fare when called upon by the conductor, but was injured before being called upon for his fare, then I instruct you that the fact that plaintiff had not paid his fare would not affect his right to recover.

"Sixth. If you find from the evidence that it was customary for the defendant, by its employees, during the crowded seasons, to permit passengers to ride upon the foot-boards of the cars, where plaintiff was riding, without objection, collect fare from them the same as when occupying seats inside the cars, and that plaintiff was riding where it was customary to ride when the car was crowded, without any objection from the conductor or other employee of the company, then I instruct you that the mere fact that plaintiff was riding upon the car at that point will not defeat his right to recover.

"Seventh. Carriers of passengers are required to furnish suitable accommodations to their passengers, in the way of seats; and if they undertake to carry more than they can accommodate with seats, and the passengers are required, and permitted to occupy other portions of the car not furnished with seats, and while in this position an injury occurs to a passenger, then the liability of the company is the same as