William Jackson, by his guardian, brought this action against the St. Paul City Railway Company, to recover damages for injuries received by him on September 7, 1894, while riding on one of its cars on Randolph street, in the city of St. Paul. The car was in charge of the motorman, who also acted as conductor. This car was of the ordinary kind, except that it did not have gates, now used on street cars in said city. It had railings at the rear end of the car, and only one step to the ground. The boy and his brother Louis, some two years older, had been sent to the meat market and had started to return home, when, seeing the car about to start, they got upon it, and sat down on the rear platform, with their feet upon the step of the car. The evidence tended to show that while the boys were sitting there the motorman got upon the car, and in doing so passed between them, each boy moving a little to let him pass. A passenger was sitting inside the car, and near the rear end of the same, and when the motorman came to collect his fare he saw these boys still sitting in the same position on the car. There was only one- passenger on the car. While the car was going very *51fast, the injured boy from some cause became very dizzy, and was thrown off or fell off the car, rolled over and over in the dust, and was seriously injured.
The evidence tended to show that Louis Jackson had requested this passenger — Winter by name — to ask the motorman to stop the car, because they wanted to get off before reaching Victoria street, and it was after this request that the boy fell off. Winter refused to ask the motorman to stop the car. There was plenty of room inside the car, and, had the motorman so desired, he could have permitted the boys to have ridden inside, or ordered them off the platform to a place of safety. This injured boy had previously seen small boys frequently riding on the car in the same manner as he did, although his father had forbidden him to do so, and threatened him with punishment in such case.
We cannot say, as a matter of law, that this boy was a trespasser. He testified that he was not stealing a ride, and intended to have paid for it, and that he would have got off the car if he had been asked to do so. Whether this testimony was true or not was a question for the jury. It was not contradicted. Merely getting upon a car and sitting down, inside or out, is not of itself prima facie evidence that in so doing a person is a trespasser.
But, whether this boy was a passenger or trespasser, it was certainly proper for the trial court to submit to the jury the question whether it was negligence on the part of the motorman, acting as conductor, to permit a child eight years and four months old to ride, seated on the rear platform, with his feet upon the step, while the car was running fast. It was within the province of the motorman to compel this child of tender years to go inside the car, or stop it, and put him off; and, if he did not do so, the jury had the right to say that he was guilty of negligence, which was imputable to the company.
There can be no question but that the child was riding in a place of danger to life and limb, and just what degree of intelligence and prudence could be expected of a child of such age was properly left with the jury to determine, as well as whether, upon all the facts, he was thereby guilty of contributory negligence. The rule laid down in Booth, St. By Law, § 351, is as follows:
*52“A child not of the age of discretion to understand the danger of riding upon the platform of a street car cannot be charged with negligence in so doing. While the company would not be liable to a person of mature age and discretion who voluntarily occupies such a position on the car, yet, in the case of a child lacking such discretion and to whom negligence cannot be imputed, it would be the duty of the agents or employees of the carrier to warn him of his danger, and, if necessary, not to stop with the warning but to compel him to occupy a proper place in the car, especially if he is not in charge of some person of sufficient age and discretion to care for him. Accordingly, it has been held negligence on the part of a driver to allow a child of the age of five, with another eleven years old, or a boy nine years of age, to ride on the platform, and gross negligence to allow a child of ten years to ride on the step of the front platform.”
Assuming, therefore, that this child was in a place of danger, that the motorman knew it, that the child was of tender years, though of sufficient age to exercise some degree of care, and that the measure of it depended upon his capacity and intelligence, yet the motorman controlling the movement of the car was bound to use reasonable care to avert the danger; and whether he did so, under the circumstances, was a question properly left to the jury. Hepfel v. St. Paul, M. & M. Ry. Co., 49 Minn. 263, 51 N. W. 1049.
The jury allowed the plaintiff $750 damages, and defendant’s counsel contend that this amount is so excessive that the jury must have been influenced, in so doing, by passion and prejudice. A careful analysis of the evidence, we think, leads to the conclusion that the verdict should not be disturbed in this respect. The boy was quite seriously injured, and had not fully recovered at the time of the trial, and whether he would ever completely recover from such injury was a matter of considerable uncertainty.
Order affirmed.