dissenting:
I do not think the movement of the street car from the shed was accompanied by any act of negligence, either of commission or omission. The same manner of handling the car was employed that had been followed hourly, day and night, for a long span of years and with no casualties.
The plaintiff’s intestate was clearly guilty of negligence, indeed this is practically decided in the case, when previously before the Supreme Court of Appeals, Prentis, C. J., saying:
“Because of the curve in the track and the necessary swing of a ear as it entered the street, the narrow *953space between a moving ear and the wall became obviously dangerous to one then standing there.” Virginia Railway and Power Company v. Burr, 145 Va. 338, 133 S. E. 776.
In the same ease the court approves an instruction which uses the following language:
“It was the duty of the plaintiff’s intestate in attempting to board the defendant’s car to exercise reasonable care for his own safety and the defendant’s employees had the right to assume that he would exercise his senses. While passengers are entitled to expect and demand from carriers the highest degree of care for their protection and safety, this rule does not go to the extent of requiring carriers to exercise guardianship over passengers who are adults and mentally competent, or to undertake to coerce them into the exercise of ordinary care for their own safety. Neither are carriers insurers of passengers.”
This instruction was refused by the trial judge and the opinion says its refusal was, under the circumstances, reversible error.
That there was no last clear chance to save Burr, after he had placed himself in the position of peril that instantly resulted in the accident, seems obvious. It follows therefore that the plaintiff’s negligence was the cause of or contributed to his death and there should be no recovery.