#### Lake Shore and Michigan Southern Railway Co. v. William Kelsey.

Opinion filed June 17, 1899

Rehearing denied October 5, 1899.

1. Railroads—standing on lower step of car is not negligence per se. Standing on the lower step of a passenger' coach while the train is in motion is not, under all circumstances, negligence per se and as a matter of law.

2. Same—whether passenger was negligent is ordinarily for the jury. Whether a passenger riding on the lower step of a platform was guilty of contributory negligence in permitting his body to project beyond the side of the train and thus to strike a car on a side-track is a question for the jury, under evidence that the platform was crowded and the train running at a low rate of speed.

3. Same—extent to which company’s regulations are binding. A reasonable regulation of a railroad company is binding upon a passenger so far as its conditions permit obedience, when the latter has notice thereof or the circumstances are such as impute notice.

L. S. & M. S. Ry. Co. v. Kelsey, 76 Ill. App. 613, affirmed.

Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.

This is a suit to recover for a personal injury. Appellee, a boy fifteen years of age, while riding on the lower step of the platform of a passenger coach belonging to *531the appellant, was struck by a car standing upon a sidetrack, thrown from the train and injured. He was holding onto the iron railing of the platform and standing with his back toward the car by which he was struck. It was contended by the appellant that the boy was stealing a ride. The jury, in answer to a special question, however, found otherwise. He had not, up to the time of the ac- • cidcnt, paid any fare, but testified that he was ready to do so. The train was run for the convenience of workmen employed at the stock yards. There is conflict in the testimony as to whether the platforms were or were not crowded, but the jury found specially that there was no room on the platform of the car for the plaintiff to stand. There is testimony tending to show that the car by which the boy was struck was standing upon a sidetrack which gradually approached and ran into the main track at a point near where the accident occurred. The cars did not come into actual contact with each other, but there is conflict in the testimony as to the width of the intervening space. The jury found in favor of the appellee, and judgment was rendered accordingly. . Upon appeal to the Appellate Court it affirmed the judgment.

Pam, Donnelly & Glennon, for appellant.

W. A. Hamilton, for appellee.

Per Curiam:

Mr. Justice Freeman delivered the opinion of the Appellate Court, which is as follows:

“Appellant seeks a reversal of this judgment chiefly upon the ground that the boy, as it is claimed, was not exercising due care for his own safety: First, because be was standing on the lowest step of the car of the platform, holding onto the railing, with his back to the sidetrack in question; and second, because his head and body were projecting" beyond the outer side of the coach upon which he was riding.

*532“The train was operated for the accommodation of workmen. It made thirteen stops between VanBuren street and its terminal station. Its rate of speed was about seven miles an hour. In this respect it differed materially from an ordinary railway train running at full speed and for long'er distances, to which a stricter rule as to the exercise of due care would be applicable. (North Chicago Street Railroad Co. v. Williams, 140 Ill. 275.) Standing on the steps of a railway car when the train is in motion, although prima facie evidence of negligence, is not negligence, under all circumstances, per se and as a matter of law. (Chicago and Alton Railroad Co. v. Fisher, 141 Ill. 614, and cases there cited.) Nevertheless, riding on the lower step of the platform of an ordinary railway train going at a high rate of speed would doubtless be regarded as gross negligence in a passenger, unless some good reason appears for so doing other than voluntary choice. But whether it is negligence or not is a conclusion of fact from the circumstances. In the present case there is testimony tending to show that the platform was crowded when the boy boarded the car at Forty-seventh street, and the jury specially found that there was no room for him to stand on the platform,—in other words, that he may have been there from necessity. The .accident occurred at Forty-fifth street. He had ridden, therefore, about two blocks in this position before he was injured. We cannot say that the jury were not justified in finding that the boy had been unable to get upon the platform, and that under these circumstances he was not guilty of negligence in that respect.

“But it is urged that if there was contributory negligence in no other way, there certainly was such negligence when the boy projected his body outside of the line of the coach upon which he was riding. It is claimed on the part of the appellant that the .space between the moving coach and the car by which the boy was struck was something like a foot and a half in width. This was *533testified to as an estimate or opinion, but not as a positive fact based upon measurements or actual knowledge. The jury were at liberty to reach their own conclusions as to the correctness of this estimate, and we do not regard its correctness as proven. On the contrary, there is evidence of facts and circumstances tending to disprove the claim that the space in question was so wide. In the case of North Chicago Street Railroad Co. v. Williams, above referred to, it is said that where a railroad company places its tracks so near an obstruction which it is necessary for its cars to pass, that its passengers, while riding", are in danger of being" injured by contact with such obstruction, it is a fair question for the jury whether the company is or is not guilty of negligence. In the present case the negligence of the company in this respect is not seriously controverted. It is, in like manner, a fair question for the jury whether, under the circumstances in evidence, the passenger was or was not guilty of contributory negligence. If the conduct of a party whose duty it is to use due care ‘is so clearly and palpably negligent that alb reasonable minds would so pronounce it without hesitation or dissent,’ then the court may so pronounce and so instruct the jury. (Hoehn v. Chicago, Peoria and St. Louis Railway Co. 152 Ill. 223, and cases cited.) In the present case we cannot say that the boy who was injured was so palpably negligent. If it be true that, having got on the train but a few moments before, he had been unable to get upon the platform because of the number of persons in advance of him, and that, holding onto the railing", he inadvertently projected his body beyond the line of the coach and was struck by a car negligently left standing upon a side-track near its junction with the track upon which he was riding, and was thus injured, it is, we think, a question for the jury whether, under the circumstances, he was or was not in the exercise of due and proper care such as would prevent him from maintaining" the action, and by their verdict they have deter*534mined the question in favor of the appellee. That they were unable to determine, from the evidence, whether there was standing" room in the aisles of the coach upon which the boy was riding, or whether there were vacant seats in the other cars, is in no way inconsistent with such finding.

“Objection is made to the first instruction given at the instance of appellee’s counsel, that it assumes the existence of a disputed fact, namely, that the appellee was a passenger. The objection is, we think, unfounded. No such assumption appears in the instruction; and, as to the disputed fact, the jury found, in answer to a special interrogatory, that the boy was not on the train with the intention of stealing a ride.

“Other instructions are objected to, but we find no material error in the action of the trial court in giving or refusing them. They state with substantial correctness the law applicable .to the evidence. A regulation of the company which is reasonable and proper is binding upon a passenger when the latter has notice of it or the circumstances are such that be ought to have such notice, and it should be obeyed so far as the conditions permit.

“Our attention is called to certain alleged errors in excluding testimony offered in behalf of appellee. Some of this evidence was clearly admissible, but inasmuch as appellee does not complain of the result of the trial it is not necessary to state" at length the reasons for so holding.

“The judgment of the circuit court is affirmed.”

We concur in the foregoing views and in the conclusion reached by the Appellate Court. The opinion of the Appellate Court as above set forth is adopted as the opinion of this court. Accordingly, the judgment of the Appellate Court is affirmed.

Judgment affirmed.