It is doubtless true that a street railroad corporation has the right to carry its injured cars to the barn for repair without being compelled to receive passengers upon them. It is also doubtless true that a whole car may be used to supply the motive power for removing the injured car to a place of repair. Under the circumstances of this case, however, I think the jury was justified in thinking that the appearance of the car and its management were both such that a reasonable man would have been justified in supposing that the car was for the purpose of accommodating passengers. It appears that the first car, upon which the deceased attempted to step, “ had the appearance of a regular passenger car.” The witness Shaw, in *544his evidence, says that he saw the car approach along Jerome avenue from the south, three or four blocks away from Burnside avenue, where he was standing waiting to go north on Jerome avenue. Shaw and the deceased were standing on the north side of the Burnside avenue car tracks, and hence in the place where the Jerome avenue car would naturally stop to receive passengers. The car approached Burnside avenue very slowly, and crossed the Burnside avenue tracks slowly, and then after crossing those tracks and proceeding northerly, it decreased its speed. Shaw got upon the car when it was either standing still or moving very slowly indeed, and as the deceased, following him, got one foot upon the car and one hand upon the handrail, Shaw says that the motorman “ threw the power on,” and this was what jerked the deceased off. It also appears that the conductor did not warn Shaw or the plaintiff not to get upon the car, but stood upon the rear platform while they were endeavoring to board it, referring to a book he had in his hand. Shaw says the rear platform gate was partly closed, and qualifies this somewhat in defendant’s favor on cross-examination; but yet I think the state of the evidence is such that the jury might find it was not so far closed as to prevent ingress. Even then it was some notice not to board, but other appearances were enough to contradict this.
I think from all the evidence the jury were justified in finding that the appearance of the car and its management and the conduct of the conductor were all such that a reasonable man would, under circumstances of this sort, reasonably fail to comprehend that the car was not meant for passengers.
If that is so, then the case resolves itself into the ordinary one where a car stops, or practically stops, at a point which is used ordinarily for the reception of passengers, and where an intending passenger, in attempting to board, is jerked off. Shaw says he raised his right hand, the motorman was in plain view, and there was plenty of light there.
It seems to me that there was evidence to support the finding of negligence, and I advise to affirm.
Rioh and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom Jenks, J., concurred, on the last ground stated in opinion.