It is apparent that such instruction to the jury was error, which must have been prejudicial to the plaintiff. Both entrances to the car were alike, and there was no reason why the front one should not have been used as well as the rear one. There was no notice to the plaintiff forbidding him to do so — no reason apparent to him why he could not safely enter in that way ; clearly it could not be *236said, as matter of law, that it was negligence for him to board the car at the front end, even though he might have easily got on at the rear end.
Yet the jury were substantially told that the - question of plaintiff’s contributory negligence depended upon whether he, by reasonable effort, could have boarded the car at the rear end. There was no real claim during the trial that he could not have done so, and it is difficult to see how the jury could avoid a verdict for the defendant in the face of such a charge.
The jury, of course, received that instruction as the law of the case, and, believing that he could easily have entered at the rear end, the question of defendant’s negligence, and of plaintiff’s, so far as his conduct after he got onto the car is concerned, were, in all probability, not considered by them. Under the charge such questions became unimportant, because the plaintiff having got onto the front end when he could easily have got onto the rear, was by that negligent act barred from recovery.
It is probable^ as suggested by the appellant’s counsel, that neither the defendant’s counsel, nor the court, intended that such instruction should have the meaning here put upon it. But it is so precise and distinct, and so clear that the jury must have understood it that way, that it cannot be overlooked as harmless error. ■
The order appealed from must be affirmed, with costs.
All concurred; Merwin, J., in result.
Order affirmed, with costs.