delivered the opinion of the Court:
This suit was brought by the administratrix of Bernard Quinn, deceased, to recover damages for his death. On the trial, the court, after the plaintiff closed his evidence, on motion of the defendant, withdrew it from the consideration of the jury, who thereupon returned a verdict for the defendant.
It appears that the deceased, as one of a large funeral party, had taken passage on the cars of the appellee at Cairo for a point a few miles distant from that city. The cars were quite full,, but the conductor thinks there were unoccupied seats in one of them, and there was standing room in all. The deceased, with several other persons, was standing on the platform when the conductor passed along collecting fares. In making change for a bank note which the deceased paid for his fare, the wind carried away the paper as it was passing from the hand of the conductor to that of the deceased. The latter attempted to regain it, and as he was then standing on the edge of the platform, or on the step, he lost his foothold and fell to the ground. As he fell he struck against the embankment, was thrown- back under the cars and killed.
This brief statement of the facts, about which there is no controversy, shows there is no ground whatever for maintaining this action. It was the negligence of the deceased, not that of the railway company, which caused his death. He was chargeable with extreme carelessness, and we can not see on what grounds any material negligence can be attributed to the company. He had voluntarily taken a dangerous position which resulted in his death, and there is no reason why the company should be made to pay damages therefor. Admitting, however, as claimed by appellant’s counsel, that the conductor should have advised the deceased to enter the car, at least while paying his fare, his failure to do so was as nothing when compared with the gross negligence of the deceased. The death of the unfortunate man can be attributed only to his own recklessness.
It is urged, however, that this question should have been left to the jury. The practice adopted by the court can not be safely followed in many cases. Whenever there is evidence tending to prove the issue, the plaintiff has a right to take the verdict of a jury. But if this had gone to the jury and they had found for the plaintiff, the court should have set aside their verdict, or, if it had refused to do so, it would have been set aside by this court. As no injustice has been done the plaintiff we can not reverse the judgment.
Judgment affirmed.
At the September term, 1870, a petition for a rehearing of this cause was presented on behalf of the appellant, whereupon the court delivered the following additional opinion :
Messrs. Goodwin & Eookwell and Messrs. Miller & Tan Arman, for the petitioner.