This was an action to recover damages for the death of plaintiff’s intestate, caused by the alleged negligence of the defendant. The only question on this appeal is whether the evidence made a case for the jury. It reasonably tended to prove the following fact’s: The car on which deceased was riding was one of the horse ears formerly used on the Payne avenue line. The rear platform extended the whole width of the car body, — about six feet, —and was about three and a half feet wide. It had a dasher across *162the end, and a shifting gate on the side next the other track, for the purpose of keeping passengers from going out on that side. The other side of the platform was left open for the ingress and egress of passengers. The dasher had a rail along the top, and on the rear end of the car body was a hand rail on each side of the door. The rail on the dasher was about two and a half feet high, and the gate on the side was “a little bit lower.” The dashers and gates on the ears on some of defendant’s other lines were from six to eight inches higher. Inside the car were the usual straps for passengers who had to stand. The track on that line was quite rough, had “high and low joints,” so that a car “would go uneven when it passes over them.” The cars would rock a good deal. It was the practice and custom of the defendant to carry passengers on the platforms, and at certain hours they would be crowded. When the deceased got on the car the seats were all occupied, but there was still standing room inside. He did not attempt to enter the car, but took his stand on the platform, near or “against thé gate, but not sitting on it.” He did not take hold of anything with his hands. While standing there he fell “backwards” or “sideways” over the gate, striking the ground on the top of his head, and fracturing his skull, so that he shortly afterwards died. The car was in motion when he fell, but there is no evidence as to its rate of speed, except that one witness testified that “it was moving steadily.” None of the witnesses testify as to whether or not there was any jerk or rocking of the car at the time he fell, but he evidently lost his balance in some way, and we think the facts in evidence would have justified the jury in concluding that it was caused by the motion of the car.
The contention of the defendant is that this evidence was insufficient to sustain plaintiff’s case, because — First, it did not tend to prove any negligence on its part; and, second, it affirmatively showed that the deceased was guilty of contributory negligence in not either going inside the car, or, at least, if he preferred to remain on the platform, in not taking hold of the hand rail or the rail on the dasher. The contention of the plaintiff is that the defendant, when it permitted and invited passengers to ride on the platform, was guilty of negligence in not providing a dasher and gate of suffi*163cient height to prevent passengers from falling over; and that the question whether the deceased was guilty of negligence in standing in the manner he did on the platform was a question for the jury. We are quite clear that the question of defendant’s negligence -was one for the jury. Permitting and inviting, as it did, passengers to ride on the platform, it was its duty to use all reasonable precautions to insure their safety. Under the circumstances •disclosed by the evidence it was to be anticipated that passengers might, by reason of the jolting or rocking of the cars, or of some ■other cause, lose their balance, especially w'hen the platform was crowded; and it was a fair question for the jury to say whether, in the exercise of that high degree of care required of carriers of passengers, the defendant ought not to have guarded the platform with rails or gates of sufficient height to have prevented just such accidents as occurred in this instance. The evidence as to decedent’s contributory negligence was also a question for the jury. Standing ■on the rear platform of a street ear in motion, even when there is room inside, is not, under ordinary circumstances, conclusive evidence of negligence, at least in the absence of any published rule prohibiting it, and especially where, as in this case, the carrier impliedly invited it. Neither did the omission of the deceased to take hold of the rail of itself amount per se to negligence. Nor, in view •of common experience and common practice, can it be said as a matter of law that the two facts combined constituted negligence. Fleck v. Union Ry. Co., 134 Mass. 480; Upham v. Detroit City Ry. Co., 85 Mich. 12, (48 N. W. Rep. 199;) Nolan v. Brooklyn City & N. R. Co., 87 N. Y. 63.
With reference to another trial, we may add that whether, under the circumstances, the dasher and gate were of a safe and proper height for the protection of. passengers, was not a proper subject for •expert testimony. That was the very question which the jury had to pass upon, and they were just as competent to pass upon it, in dhe light of all the evidence, as any so-called “expert.”
Order affirmed.
Gilfillan, C. J., and Collins, J., absent, took no part.•(Opinion published 53 N. W. Rep. 1071.)