On Application for Rehearing.
FRICK, J.Plaintiff’s attorneys have filed a petition for rebearing, and in support thereof have filed a brief in which the propositions originally presented and decided are re-argued. We shall not, and in the nature of things cannot, go over the whole ease again.
Counsel have, however, in their brief pointed out that the decision in the case of Winters v. B. & O. R. R. Co. (C. C.) 163 Fed. 106, which was cited and quoted from in the original opinion, was reversed in 177 Fed. 44, 100 C. C. A. 462. Counsel are to be commended for their diligence in discovering the status of the Winters Case, and we thank them for having called our attention to the matter. This court does not want to cite decisions that have been reversed or overruled, although it may be, and sometimes is, the case that the decision which is reversed or overruled is quite as sound in principle as is the overruling or reversing decision. The citation of reversed or overruled cases should, however, be avoided so as to prevent them from misleading both court and counsel in subsequent cases. It is a matter worthy of comment, however, that the doctrine or principle laid down in the excerpt that we quoted from the Winters Case was not overruled or questioned in the reversing opinion. Indeed, it could not well have been, since the proposition is well established. What is held by the appellate court in reversing the Winters Case is that the lower court had erred in classifying the case in view of the facts which are more fully stated in the opinion of the appellate court. In view, however, that the Winters Case has been overruled, the excerpt quoted therefrom and all that is said in the original opinion respecting that case will be eliminated from the opinion and will not be officially published.
It is, however, seriously contended that we erred in holding under the facts that the plaintiff was guilty of contributory negligence as matter of law. To sustain their contention counsel have cited the following among other, cases: Willmott v. Corrigan Con. St. Ry. Co., 106 Mo. 535, 17 S. W. 490; Yazoo, etc., R. R. Co. v. Byrd, 89 Miss 308, 42 South 286; Vessels v. Metropolitan, etc., Ry. Co., 129 Mo. 708, 108 S. W. 578. It is not necessary to refer to the other cases cited, as they are *570either clearly distinguishable from the ease at bar or come within the principles of the cases last above cited, which we shall now proceed briefly to consider.
In the Willmott Case a boy 12 years of age stepped onto the car steps of a street car propelled by mules. He got on the steps without intending to pay his fare he said, and so told the driver, who was in sole charge of the ear. The boy, after boarding the car, and after telling the driver what we have just stated, wanted to alight therefrom, and when he attempted to do so the driver “whipped up” the mules and they started off on a run, and the boy, in attempting to alight, was thrown under the wheels of the car and was injured. In that case, therefore, a lad 12 years of age was charged with contributory negligence as matter of law, while the court held to the contrary. This court has so frequently held that the question of whether an infant was guilty of contributory negligence in doing or omitting to do a particular act is a jury question that it has become elementary. Moreover, in the Willmott Case the driver of the car was guilty of a willful wrongful act after he saw the boy’s predicament. Further comment is unnecessary.
■ In the Byrd Case the injured passenger was standing on the car steps and was in an intoxicated condition, all of which was well known to the conductor of a fast running train. The conductor permitted him to remain on the platform and on the steps of the car without objection. The intoxicated passenger fell off the steps of the car and was injured. The conductor was immediately apprised of the fact and was asked to stop the train, but he would not do so until the train had arrived at the next station. In the meantime a heavy rainstorm supervened, and the passenger was permitted to remain in his injured condition in the rainstorm, and he subsequently died. At the trial it developed that the injuries from his fall might not have been fatal, but that the exposure to the rainstorm might have contributed to his death. The cause of death was therefore left in some doubt. The court held that although the passenger was in the wrong, yet, in view of all the facts and circumstances, the case was a proper one for the *571jury. No one will doubt the soundness of the court’s conclusion.
In the Vessels Case, supra, which is another street car case, a boy was standing on the steps with the consent of the conductor and the knowledge of the gripman who was operating the ear. While the boy was thus standing, the car collided with a wagon arid the boy was injured by the collision. In referring to the duty of the gripman who operated the car the court, in the course of the opinion, said:
“Knowing that plaintiff (the hoy) was where he might receive an injury from the wagon, it was the duty of the gripman not only to warn him of the danger, hut, when he saw the warning was not being heeded with proper alacrity, to stop the car to avoid injuring him. From the evidence of plaintiff, it appears that the gripman had knowledge of the danger in sufficient time to stop the car.”
Here again we have thus not only an infant to deal with, which is a fact referred to in the opinion, but we have a case of actual wrongdoing on the part of the gripman in not avoiding the collision, which the court says he could have done before the injury to the boy resulted.
The foregoing cases illustrate the character of cases cited by counsel and in which the courts hold that the question of contributory negligence should have been submitted to the jury. While in numerous cases cited by them such is the holding, yet those cases are 'far outside of the facts of the case at bar. The case at bar is not even remotely related to many of the cases referred to by counsel. Here we have an adult leaving a safe place in a car to find another place on the train which he tells us was “vastly overcrowded.” After leaving a safe place, he not only takes an unsafe and dangerous position on the running board of a fast moving train, but, according to his own and his companion’s statements, they literally “wedged” or forced themselves between others standing on the running board, so that their position must have been doubly insecure, first, because to stand on the running board is, in and of itself, an unsafe and dangerous position, and, second, in “wedging” or crowding themselves in where there was insufficient room increased the danger. Moreover, we do not have a case of subsequent derailment or collision after *572plaintiff had voluntarily assumed a dangerous position, but all we have here is a lurching or swaying of the ears from side to side in passing over, or immediately after the car had passed over, a switch. There are millions of passengers who ride upon the passenger trains of this country annually, and it is safe to assert that all know that cars sway or lurch more or less in passing over switches, depending, as a matter of course, upon the condition of the tracks.
In view that counsel have cited two cases from the Supreme Court of Missouri, namely, the Willmott and the Yessels Cases, it may not be” out of place to call attention to another case from that state, namely, Carroll v. Interstate, etc., Co., 107 Mo. 653, 17 S. W. 889. In that case the rule applicable to facts like those in the case at bar is correctly stated and is in strict harmony with our conclusions in the original opinion.
Counsel, however, refer to and quote from 3 Thompson Comm, on the Law of Negligence, § 2947. They must have quoted from another edition or from some other section, since the quotation is not in accordance with the text of section 2947 (2d Ed.). In the latter section Thompson says:
“The general rule is that if a passenger elects to ride upon the platform of a steam railway car, without any necessity, real or apparent, for taking that position, and, while so riding, is injured under such circumstances that he would not have been injured if he had not taken that position, he cannot recover damages from the company. In other words, for a passenger to ride in a position of such obvious danger, without any real or apparent necessity for so doing, is generally regarded as negligence per se.”
The author there states the general rule to which there are exceptions, some of which are illustrated in the cases cited by counsel and to which we have referred. The uncontro-verted facts of the case at bar, however, do not bring it within any of the exceptions; but, as Thompson says, such a case comes squarely within the general rule that no recovery can be had.
In the following section of Thompson, 2948, the author further says:
“The passenger is not excused in taking such a dangerous position by the mere fact that he cannot get a seat inside the car, pro*573vided there is standing room inside, although his position when so standing would he one of discomfort. * * *”
As a matter of law, a passenger wbo suffers discomfort and is injured through the carrier’s fault in failing to provide adequate “accommodations and protection” may recover damages as well for those discomforts as for the reasons stated in the original opinion. This court is firmly committed to that doctrine. See McCollum, v. So. Pac. Ry. Co., 31 Utah, 494, 88 Pac. 663, and the two cases following that case.
There is only one other ease we shall refer to, namely, Little Rock & Ft. S. Ry. v. Miles, 40 Ark. 298, 48 Am. Rep. 10. The court, at page 322 of 40 Ark., states the law in the following words:
“But there are certain portions of every railroad train, which are so obviously dangerous for a passenger to occupy and so plainly not designed for his reception that his presence there will constitute negligence as a matter of law and preclude him from claiming damages for injuries received while in such position. A passenger who voluntarily and unnecessarily rides upon the engine or the tender, or upon the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that condition and discretion which the law requires of all persons who are of full age, of sound mind and of ordinary intelligence.”
In support of the text a large number of cases are cited to which it is not necessary to refer.
Much is said in counsel’s latest brief respecting the question of assumption of risk and that wé also erred in that regard. In the opinion we carefully explained why that subject was referred to. Since when is a reviewing court prohibited from referring to matters that were pleaded and which were submitted to the jury as a part of the issues? The explanation we made was not even necessary, but, having made it, it is, to say the least, somewhat unusual for counsel to take up that matter as is done in their brief. The assertion that this court based the decision upon the evidence favorable to appellant can only be explained upon the ground that counsel’s zeal for their client and the natural bias arising out of the relation must have betrayed them. The decision *574with respect to contributory negligence is based entirely upon plaintiff's own statements and those of his companion. Those statements related to facts that no one else testified to. .Nor could any one else do so, since those statements related to plaintiff’s own acts and conduct which occurred in the darkness of the night and which were not known to any one except to himself and to his companion, and could therefore not be testified to by any one else. They alone could disclose what their conduct was at the time. If, under such circumstances, a court may not rely upon a party’s statements respecting his acts and conduct, under what circumstances may that be done? There was absolutely no contradiction of nor any dispute concerning plaintiff’s statements, and in viotv that no one was in a position to dispute or to contradict them for the reason that the real facts were known only to himself and to his. companion, the only recourse for any court is to accept the statements as true.
The case received most careful consideration both as to the facts and as to the law, and, after mature reflection, we were forced to the conclusion stated in the original opinion. We have discovered nothing which would justify a different result.
The petition for rehearing is therefore denied.
WEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ., concur.