delivered the opinion of the Court:
There is but one question for us in this case; and that question is no longer an open one. It is, whether, under any *42and all circumstances, an attempt to board a street car drawn by horses, however slowly moving, for the purpose of becoming a passenger thereon, is an act of negligence in law on the part of the person making the attempt, such as to preclude him or his representative from recovery against the railroad company owning and operating the car, if he has been injured in the attempt by the alleged negligence of the agents of the railroad company. The answer to this question has been conclusively settled in the negative both by reason and the great weight of authority. This was fully admitted in the argument for the appellee; and we are therefore saved the necessity of discussion of the subject and of the citation of authorities upon the question. And it follows, necessarily, .that there was plain and palpable error in this case, both in the charge given by the court to the jury and in the instructions l'equested on the part of the appellee and granted and emphasized by the court, as also in the refusal to give the instruction requested on behalf of the plaintiff.
But it is argued that, in a legal sense, the plaintiff was not harmed by the error; and for this contention two grounds are assigned. The first is, that the presiding justice, in the statements to which exception was taken, was only commenting on the evidence, as he had a right to do, and after all left it to the jury to determine whether the deceased wras negligent. 'And the second ground is, that in view of the preponderance of the testimony in favor of the defendant, the verdict is right anyhow, and should not be disturbed.
But we have nothing to do with the preponderance of evidence; and this second consideration, therefore, can have no weight. Nor is it apparent that the other justification for the charge and instructions given has any greater merit. It is very plain that the presiding justice was not commenting on the evidence, but peremptorily instructing the jury in terms which left them no option but to return the verdict which they rendered. Nowhere does he tell them that it *43was for them to determine, whether, under the circumstances of the case, it was negligence on the part of the deceased to attempt to board the moving car; and yet that was a question to be determined by them under proper instructions from the court. On the contrary, he distinctly removed that question from their consideration; and it was left them to determine only whether there was any negligence on the part of the agents of the railroad company supervening after discovery by them of the perilous position of the deceased.
It is not always negligence either in law or in fact for a person to attempt to enter upon or to alight from a moving car propelled by the greatly more dangerous agency of steam. And we know that, upon these street cars, when drawn by horses, it was not at all an unusual thing, permitted and even encouraged by drivers and conductors, for persons to get on and off the cars while in motion, the cars being merely slowed up for the purpose and not stopped. When circumstances, therefore, are shown, from which it may reasonably be inferred that such attempts are sanctioned by the railroad company, or are not inconsistent with the usual course of action of ordinarily prudent persons, it is for the jury, and not for the court, to determine whether there was negligence. And it is certainly error to instruct a jury, as was practically done in this case, that under no circumstances could such an attempt be excused from the charge of negligence.
We are of opinion that the judgment appealed from should be reversed, with costs, and that the cause should be remanded to the Supreme Court of the District of Columbia, with directions to vacate the verdict of the jury and award a new trial. And it is so ordered.