The opinion of the court was delivered, May 11th 1874, by
Williams, J.This was an action to recover damages for an injury occasioned by negligence. The plaintiff below, a boy of. ten years of age, was a passenger on the defendants’ car, and, in getting off, jumped from the front platform while the car was in motion, and received an injury which resulted in the loss of a leg. At the time of the accident there were more passengers in the car than could be seated. Some were standing on the front and rear platforms, and others inside the ear, in the passage-way, between the seats. The plaintiff got into the car in company with his younger brother and sister, at or near the intersection of Walnut and Broad streets. The latter, upon entering the car, got seats near the door at the rear platform. The plaintiff, after standing awhile, obtained a seat at the upper end of the car near the front door, which was open. The car stopped at Twenty-first street, and the younger children, without the knowledge of the plaintiff, got off with other passengers. But as the car started he saw them on the sidewalk, and tried to get out to the rear platform, but the passageway was so crowded that he turned and rushed out of the front door, and, as he says, told the driver to stop, who answered “ all right,” and slacked up with the reins. While the car was in motion, the plaintiff jumped off upon a pile of loose bricks, and slipped under the car. The hind wheel passed over his leg, crushing the bone above the ankle, and opening the ankle-joint. The driver testified that he slacked up because it was down grade; that he did not hear the boy ask him to stop, and that the first he saw of him he was falling, or jumping off the front platform. He could not say whether he jumped off or fell off; that he checked his horses, put his break to the car and did his best to stop it. The conductor was on the rear platform making change for a passenger who was paying his fare, and did not see the plaintiff until he felt the bouncing of the ear as it passed over his leg, and then he saw him crawl over to the sidewalk.
The court instructed the jury, in substance, that if the plaintiff’s injury was occasioned by the negligence of the defendants, without any fault on his own part, then he was entitled to maintain the action. But if it was not occasioned by the defendants’ negligence, or if his own negligence contributed to produce it, he was not entitled to recover. But in determining whether he acted with ordinary care, or was guilty of negligence, the jury must consider *376his conduct and action in view of his age. All that the law exacted of him, was such prudence and discretion as is usually exercised by boys of his own age; and if he acted with as much care and prudence under the circumstances, as children of his own age generally exercise, then he was not chargeable with negligence. No complaint is made in regard to these instructions, but it is alleged that there was error in the answers of the court to the plaintiff’s fifth and seventh points, and to the defendants’ first, second, third, fourth, fifth, sixth and tenth points; all of which, .as it seems to us, were answered in substantial conformity with the instructions contained in the general charge. The assignments of error embracing the answers to these points, virtually raise but two questions:—
1. Whether, under the facts disclosed by the evidence, the court should have charged that no negligence was imputable to the defendants ?
2. Whether the court should have charged that the plaintiff’s injury was occasioned by his own negligence or misconduct ?
It was the duty of the defendants to carry the plaintiff and set him down safely, if they could do it by the exercise of reasonable care and vigilance. If the plaintiff, on account of his age and inexperience, was incapable of taking proper care of himself, then the defendants were bound to exercise the highest care and vigilance necessary and proper to secure his safety. Whether the carrier, in the case of an injury to a passenger, has exercised reasonable and proper care to prevent it, or has been guilty of negligence, is, as. a general rule, a question of fact for the jury. But there may be such an obvious disregard of duty and safety, as to make it incumbent on the court to declare it negligence as a matter of law : Penna. R. R. Co. v. Ogier, 11 Casey 60; Pittsburg & Connellsville R. R. Co. v. McClurg, 6 P. F. Smith 295; and so the evidence may show such care and vigilance, and such an absence of any fact from which negligence can be inferred, as to make it the duty of the court to declare that no negligence is imputable : Philadelphia & Reading R. R. Co. v. Hummell, 8 Wright 375. But such cases are exceptions to the general rule, that what is "negligence is a question for the jury, when the measure of duty is ordinary and reasonable care: McCully v. Clark & Thaw, 4 Wright 399; Glassey v. Hestonville, &c., Passenger Railway Co., 7 P. F. Smith 172; Kay v. Penna. Railroad, 15 Id. 269; Penna. Canal Co. v. Bentley, 16 Id. 34; West Chester & Phila. R. R. Co. v. McElwee, 17 Id. 311. Is then the case before us within the exception, or does it clearly come within the general rule ?
It was undoubtedly the duty of the defendants to prevent children from getting on or off the front platform, or from riding in a place of so much danger: Pittsburg, Allegheny and Manchester Railway Co. v. Caldwell, 24 P. F. Smith 421; and if negligence is not *377imputable to them as a matter of law, because they did not enclose the front platform with a screen or fender, the fact that it was not so enclosed is a matter proper to be considered, in connection with the other facts of the case, in determining whether, or not, the defendants were guilty of negligence in allowing the front door to remain open, when the car was filled with passengers, some of whom were children, unattended by their parents or guardians, and who, from their youth and inexperience, may not have known that there was greater danger in getting off the front, than there was in getting off the rear platform. If the ear was filled with passengers — if some were standing on the platforms, and others in the passageway, blocking it up so as to make it difficult for the plaintiff to get to the rear platform, and impossible for the conductor to see him, how, under these circumstances, could the court say, as matter of law, that it was not the defendants’ duty to keep the front door closed, and that they were guilty of no negligence in allowing it to remain open ? If the plaintiff did not know that it was more dangerous to get off the front than to get off the rear platform, was not the crowded passageAvay and the open front door an invitation to him to go through it and get off the front platform ? If the latter had been enclosed with a screen or fender, the door might have been allowed to remain open with safety. But there was nothing in the construction of the front platform, showing that it was not to be used by passengers in getting on and off the car ; and the evidence shows that the plaintiff was not told or informed that he must not get on or off the front platform. It is clear, under all the circumstances, that the court could not have instructed the jury as matter of law, that it was not the duty of the defendants to keep the door closed, and if so, the question of negligence was properly submitted to their determination. Where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved: McOully v. Clarke & Thaw, supra. The court below was, therefore, right in refusing to charge that no negligence was imputable to the defendants.
II. Was there error in not charging that the plaintiff’s injury was occasioned by his own negligence or misconduct ?
It may be conceded that if the plaintiff had been an adult of ordinary discretion and intelligence, he would have been chargeable with negligence in jumping from the front platform, while the car was in motion, and the court might properly have instructed the jury that his injury was occasioned by his own folly and imprudence. But the plaintiff was a mere boy, and the law, because of his tender age and inexperience, does not exact of him the same degree of care and prudence that it does of a person of mature years. A boy’s capacity is the measure of his responsibility; and if he has not the ability to foresee and avoid danger to which he *378may be exposed, negligence will not be imputed to him, if he unwittingly exposes himself to it. Whether, then, the plaintiff had sufficient discretion and intelligence to know that he was exposing himself to great bodily harm in jumping, from the platform as he did, was not a matter of law but a question of fact, and was properly submitted to the jury, with the instruction that the law exacted of the plaintiff just that degree of care, prudence and discretion that his years had given him and no more; and if greater prudence and discretion than that exercised by the plaintiff, upon this occasion, would characterize the conduct of other boys of his age under similar circumstances, then the company is not to be held responsible, because of the rashness and impulsiveness of this boy in springing from his seat, rushing by the driver, and jumping from the car whilst it was in motion. The law governing tibe plaintiff’s responsibility for the act which resulted in his injury, is clearly and accurately stated in the defendant’s eighth and ninth points, which were affirmed by the court without qualification, and by their affirmance the question of the plaintiff’s negligence was submitted to the jury with just such instructions as they asked. If the verdict of the jury was against the weight of the evidence, the defendant’s remedy was a motion for a new trial, the granting or refusal of which was a matter within the sound discretion of the court below, and is not reviewable here. ''
Judgment affirmed.