Plaintiff boarded defendant’s car and remained upon its rear platform smoking, leaning upon or near a closed gate on one side of said platform. As the *475car rounded a curve at a speed of five miles per hour or upwards, said gate (which should have been securely closed) opened, and plaintiff was thrown into the street and injured. At the time plaintiff entered the car there were vacant seats therein, but he and other passengers were permitted by the conductor to remain upon said rear platform. The learned court charged the jury, that plaintiff had a perfect right to stand wherever he saw fit in that car after the, conductor had taken his fare in that position. This language negatived other portions of the charge holding plaintiff to the exercise of ordinary care; and the jury were substantially directed to find that plaintiff, by not taking the safest possible position, to wit, within the car, had not contributed to his injuries. Passengers are bound to exercise ordinary care and that is a question for the jury. Had this car been crowded so that there was no space inside, the defendant’s patent negligence by reason of the insecurely fastened gate would probably have rendered it liable for plaintiff’s injuries. We think that the exception to the above-cited portion of the charge was well taken and that the judgment should, therefore, be reversed.
Blaeohabd, J., concurs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.