In my judgment it was error for the trial justice to dismiss the complaint in this case. It was a question of fact for the jury to determine whether or not the defendant was negligent and the plaintiff free from contributory negligence. It was the duty of defendant to run its road along a way which was not dangerous. The fact that the iron post against which plaintiff struck and was injured, was erected by the elevated railroad subsequent to the time when defendant built its road would not justify defendant in continuing to use its road, as. far as its passengers are concerned, if by so doing it became a danger*236ous thing to do. It should have prevented the elevated railroad from placing its pillars in a place where they would injure persons riding on defendant’s cars who prudently and carefully did so, or else should have removed its rails farther away from such pillars, or so constructed the platforms on its cars as to permit its passengers to use them without harm from such dangerous things. This duty defendant owed its passengers. A failure to do so, I think, constituted negligence on defendant’s part because of the length of time that said pillars and defendant’s road occupied their present positions.
Concerning the alleged contributory negligence of plaintiff, the plaintiff had a right to a seat in defendant’s car, in fact it was his duty to take one as soon as possible. When he boarded it all the seats were occupied ; he was compelled to stand on the rear platform; at the moment when a passenger having a seat left the car, plaintiff exercised his right to have a seat by proceeding along the only passageway from the place where he stood to the vacated seat.
Whether or not he did so in a careful or careless manner, particularly in view of the facts above recited and in addition that it was night-time and he was not familiar with that part of the defendant’s road, and that he had a right to assume that it was free and clear from all danger, was a question of fact for the jury to determine and not a question of law for the court to decide.
For these reasons I think that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
Judgment affirmed, with costs.