delivered the opinion of the court, February 20th 1882.
The single breach of duty with which the defendant below was specifically charged, as the only ground of liability to the plaintiff for the injury he sustained in falling off the platform of the car on which he was then standing, was the failure of the company to provide a sufficient number of cars to seat all the passengers on the train.
Without assenting to the broad proposition contended for, that a railroad company, using steam motive power, is bound absolutely and under all circumstances to provide every passenger on the train with a seat, it cannot be questioned that, as a general rule and under ordinary circumstances, it is the duty of such company to provide suitable car accommodations and seats for those whom it undertakes to carry; and if a passenger, exercising reasonable care and prudence, is injured in consequence of the company’s neglect of duty in that regard, the latter is liable to respond in damages for the injury thus occasioned solely by its own negligence. There appears to be nothing in the circumstances of this case to exempt the company from that general rule of duty; and if its negligence wras the proximate cause of the plaintiff’s injury, the liability of the company would necessarily follow, unless the plaintiff himself was guilty of negligence which contributed thereto. Iiis contention was that, in common with many other passengers, he was unable to procuro a seat, and while searching for one he was thrown from the platform of one of the cars, and thus sustained the serious injury which resulted in the loss of his arm. The over-crowded condition of all the cars composing the train, and the consequent inability of the plaintiff and others to procure seats, were facts clearly proven.
Assuming for the present that the company was justly chargeable with negligence resulting in injury to the plaintiff below, and that under the circumstances he was not guilty of contributory negligence in passing from ear to car in search of a seat while the train was in rapid motion, can it be pretended *498that it would not be gross negligence in him to voluntarily take á position near the outer edge of the platform and remain there until, by an ordinary jolt of the car, he lost his equilibrium and was thrown off ? This is precisely what the evidence as to the plaintiff’s position at the time of the accident clearly establishes. Apart from his own testimony, there is very little evidence tending to show precisely where he was at and shortly before that time ; and there is certainly nothing, that militates against his own version of what then and there occurred. He testified in substance that on entering the cars at Atlantic City and finding the rear one over-crowded he pushed his way forward, searching in vain for a seat, until he reached the front ear. After remaining there a short time, he stai’ted back: and quoting from his own testimony as found in the bill of exceptions, he says : “ 1 left that car because I was tired standing there; had been there seven or eight minutes; started back through the cars; went through some ten or twelve cars ; stopped several times going through; can’t recollect time it took to go through back; could not get through for crowd ; it was pretty near the same going back as coming through;' I stopped outside on platform; rear platform of fourth or fifth car, right outside the door; stood on one side ; the right hand side coming up. When I got out first I had hold of a little rail or something across the window ; I held on to the little rail across the window to keep from falling off; let go to go through the ears ; I. was standing there a minute or two or so; it was two minutes to the best of my knowledge; can’t tell if it was longer; when I left I started to go through, when the’ car got a jolt, and somebody struck me; could not count how many passengers passed through while I was on the platform ; they were coming in the opposite direction, up towards the engine, and some were going through the same way, towards the rear of the train ; can’t say whether the car door of the car I passed out of was open; when I went out the door of the opposite car I am positive sure was open; saw parties coming from the opposite car; I did not stand aside inside of car because I could not see them well, and because I wanted to go through myself ’; I came out and stood with my back against the car, and hand on the rail, resting myself; I was leaning with my back against the car, and my hand, behind me ; people were passing through into the car I left; there was a crowd; I left that car to go into an adjoining car; while standing there the car got jolt, and somebody behind me struck me and staggered me ; the jolt and it had something to do with it, can’t tell whether the jolt, without the other, would have thrown me off; as soon as I got the jolt I made a grab with the right hand, and missed, and caught with the left the rail on the platform; there is a similar rail on the body of the *499~car, to assist people in and off; I tried to get hold of the rail on the body; I was thrown partly round, and caught the dasher rail with iny left hand ; I was thrown with my chest towards the inside track; the train was traveling very rapidly; my arm was mangled.”
It is very evident from the plaintiff’s own statement that, at the time of the accident and for some minutes before, he was not in the act of passing from one car to another in search of a seat: on the contrary, he was standing quite near the edge of the platform with his back to the end window of the car. He was not only in a position of known danger, but was there voluntarily and in disregard of the rules of the company. There is nothing in the testimony from which a jury would be justified in coming to any other conclusion. While he was thus standing on the platform, persons passed from one car to the other in both directions, and there is nothing whatever to show that he could not have gone into the next car if he had been so disposed. Neither he nor any other witness pretends to say it was necessary for him to stop and stand on the platform.
In the seventh point of the defendant below, the court was requested to charge “ That even if a search for a seat was the real purpose of the plaintiff in going out on the platform, and even if it were not negligence for him to have crossed from car to car for that purpose, yet, if the jury believe from the evidence that he lingered on the platform, instead of immediately crossing, the verdict should be for the deferidant.” The learned judge, in affirming this proposition, added the qualifying wmrds, “unless compelled thereto by circumstances.” The jury was thus authorized to inquire whether or not the plaintiff was compelled by circumstances- to linger on the platform. We see 'nothing in the testimony to warrant the submission of this inquiry to the jury. As already intimated, there was not a particle of testimony from which it could be reasonably inferred that plaintiff was compelled to take or retain the position he did on the platform. Having shown by his own testimony that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to prove that he was there from necessity and not from choice. While the latter was clearly shown, there was no testimony tending to prove the former. The point should have been affirmed without the qualification complained of. But, for reasons already suggested, we think the court should have gone further, and instructed the jury as requested in defendant’s ninth point, which was : “ That the evidence shows negligence on the part of plaintiff which contributed to produce the injury complained of, and therefore he cannot recover.”
The dangerous position on the platform in which the plain*500tiff voluntarily placed himself, while the cars were in rapid motion, was undoubtedly the immediate cause of his being jolted off. If there had been any testimony from which it could have been reasonably inferred that he was there from necessity and not from choice, it would have been a question for the jury: but, in the absence of such evidence, it was error to refuse the point, and leave it to the jury to determine whether he was or was not guilty of contributory negligence.
Of all the passengers on a long train of twenty over-crowded cars the plaintiff was the only one who appears to have been injured. If he had submitted, as many others did, to the inconvenience of standing inside the cars, or if he had been guilty of no greater imprudence than passing from car to car, while the train was in rapid motion, it is not at all probable he would have been injured. His inuch-to-be-regretted misfortune was the result of his own carelessness. This was clearly proved by uncontroverted testimony, from which no other conclusion could reasonably be drawn.
Judgment reversed.
Mercur, Gordon and Trunkey, JJ., dissented.