The general instruction, that the plaintiff, in order to recover, must prove that, under all the circumstances of the case, she was in the exercise of due care, was given by the presiding judge; but the contention of the defendant is, that it was entitled to certain special instructions requested. The second and sixth requests are all that the defendant has insisted on, and all that need be considered.
The second instruction requested, that, “if the jury believe the plaintiff took an unsafe position in standing up between the seats in an open car, she cannot recover,” if given, would have led to the inference that, even if the plaintiff took this position with the full consent of the defendant, or at its implied invitation, and such position was not safe as compared with that upon *21the seats of the car, she could not recover. It is said by Chapman, J., in speaking of horse-railroad cars, in Meesel v. Lynn & Boston Railroad, 8 Allen, 231: “ The seats inside the car are not the only places where the managers of the -train expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside till -the car -is full, and then to stand. upon the platforms till they are full, and continue to stop and receive them even after there is no place for them to stand except on the steps of the platform.” These remarks apply to the open cars used by the horse railroads, as well as to the closed cars. That such positions are less safe than those in the seats, from the danger from jolting, stopping, or the motion of the car, especially around curves, is certainly true, but they are not therefore necessarily so hazardous that one occupying such a position should be thereby prevented from recovering, if injured by want of due care in the management of the car. The passenger has a right to believe that it will be conducted and operated in view of the fact that some of the passengers are or may be standing and steadying themselves by the seats, rails, or straps that may be provided for that purpose.
The defendant relies on the case of Wills v. Lynn & Boston Railroad, 129 Mass. 351, but the difference between that ease and the one at bar is radical. In that case, the plaintiff occupied a sitting position upon the front platform of a street-railway car while in motion, against the rules of the defendant corporation and the warning of the driver of the car, and without any reasonable excuse therefor. Such conduct could not but be condemned as careless by men of common prudence. In the case at bar, the defendant’s evidence tended “to show that, when the crowd came from the railroad station to get upon the car, the conductor, in a loud tone of voice, which the plaintiff and others must have heard, proclaimed that there was no room in the car except for people to stand up, and that there were no seats.” So far, by fair implication, as the defendant contends, from giving the plaintiff “ notice not to take the position which she did,” the true construction of this evidence is, that, while passengers were warned that there were no- seats, they were invited, if they would submit to this inconvenience, to occupy the standing room. Especially is this so, as it appears *22that the car remained to receive such passengers, and that no objection was made, before her injury, to the position taken by the plaintiff. If the defendant consented to receive the plaintiff as a passenger while occupying a standing position, even if it was comparatively unsafe, but yet one which a passenger could, in the exercise of due care, properly occupy, the plaintiff would not be barred from recovering.
These remarks dispose of the sixth request. To have instructed the jury that, if the plaintiff “took a place or position on the car where there was no provision for passengers,” the defendant would not be liable, if such position contributed to the accident, would have been to omit the important consideration whether the position was occupied by the implied invitation and full consent of the defendant. If so, the plaintiff was not necessarily prevented from recovering, and would have a right to expect that proper care would be used in driving the car.
Exceptions overruled.