1. The award offered by the defendants constitutes no bar to the present action. It settles nothing conclu sively between the parties. It is still open to revision by the court to which it was returned, and may be set aside or adjudged void for any good cause. It can have no greater effect than a verdict of a jury It operates neither as a satisfaction nor as a judgment. Assuming, without deciding, that a judgment for a *20personal injury against one of two joint tortfeasors would be a bar to an action against the other, there is no good reason for the position that the pendency of an action against one should operate as a bar to the maintenance by the party injured of a separate action against the other. The rule is well settled, that co-trespassers are jointly and severally liable, and that separate actions may be maintained against them for their wrongful acts Until a judgment against one has been obtained, it is uncertain whether the party injured will be able to maintain more than one action. Clearly, it is no defence to show that another person committed the alleged wrongful acts in company with the defendant. It is difficult, therefore, to see how his liability is affected by the fact that his co-trespasser is sued for the same act in another action. The dictum of Lord Ellenborough in Boyce v. Douglas, 1 Camp. 62, cited in 1 Chit. Pl. (6th Amer. ed.) 101, is not supported by the authorities, and is denied to be a correct statement of the law in Henry v. Goldney, 15 M. & W. 498. See also Broome v. Wooton, Yelv. (Am. ed.) 67, note; Livingston v. Bishop, 1 Johns. 290; Campbell v. Phelps, 1 Pick. 62; Hyde v. Noble, 13 N. H. 494. Nor can it make any difference as to the effect of the award that the costs of the reference were paid by the Boston and Worcester Railroad Corporation. Such payment cannot be regarded as a part performance of the award. It was only a preliminary step, by which the corporation obtained possession of it from the arbitrators for the purpose of returning it into court. The validity of the award and the rights of the plaintiff under it were wholly unaffected by this act of the corporation; a fortiori, it can have no effect to bar the plaintiff from maintaining this action.
2. The instruction which the defendants asked concerning the degree of care and diligence which they were bound to exercise towards the plaintiff, was rightly refused. If it be true that in certain cases a distinction is to be made as to the relative duty of carriers of passengers towards those who pay for their transportation and those who are carried gratuitously, it does not appear that the facts proved at the trial of this case rendered it material to call the attention of the jury to it. The defendants *21having undertaken to transport the plaintiff in their cars were bound to the use of due and reasonable care in performing a duty which they had voluntarily assumed; and if, by omitting to take such precautions as were necessary and proper to prevent a person exercising due care from receiving an injury, the plaintiff was injured, he is entitled to recover compensation therefor. See Philadelphia & Reading Railroad v. Derby, 14 How. (U. S.) 483; Steamboat New World v. King, 16 How. (U. S.) 469; Redfield on Railways, 329.
3. The only error in the instructions of the court related to that part of the case which involved an inquiry into the position of the plaintiff’s arm at the time of the accident. If he was then riding in the car with his elbow or. arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care, which would prevent him from maintaining his action. Looking at the mode in which railroads are constructed, with posts and barriers which are placed very near to the track on which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure. of the body or limbs to outward objects in passing, we can see no ground on which it can be contended that a person travelling on a railroad is exercising reasonable care in placing his arm in such a position that it protrudes from a window and may come in contact with external obstructions. Certainly, if it is a want of due care to attempt to leave a car when the train is in motion, although going at a slow rate of speed, as has been heretofore determined by this court, it is no less a want of proper care to ride in a car with an arm or leg exposed to collision against passing trains or the necessary structúres on the sides of the track. Nor was it the province of the jury to determine as a matter of fact, whether the plaintiff used due and reason able care, if it was proved that his arm or a portion of it was outside of the window at the time of the 'accident. If there was no dispute or controversy about this fact, and the position of his arm was the cause of or contributed to the accident, the plaintiff failed to prove an essential element to the maintenance *22of his action. In such a state of the evidence, it was the duty of the court to decide on its legal effect, and to say to the jury that the plaintiff had failed to make out his case. Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64. Gavett v. Manchester & Lawrence Railroad, 16 Gray, . Gahagan v. Boston & Lowell Railroad, 1 Allen, 187. Cotton v. Wood, 8 C. B. (N. S.) 568. We are therefore of opinion that the defendants were entitled to a more explicit instruction in answer to their second prayer than was given by the court, and that on this ground the' verdict rendered in favor of the plaintiff must be set aside, and a
New trial granted.