
    The Interurban Railway & Terminal Company et al. v. Hancock.
    
      Care required of passengers — .On interurban electric car — Negligence for passenger to project arm out of car window, when— Question of iron bars across window of car — Contributory negligence — Instructions to jury — Liability of railway corporations.
    
    1. A carrier of passengers is bound to exercise the utmost practicable care and diligence to secure the safety of the passenger, but a duty of reasonable care for his own safety as well rests upon the passenger himself.
    2. It is negligence as matter of law for a passenger traveling on a rapidly rnovmg railroad car to intentionally and needlessly project his arm or a part thereof out of the window of the car.
    3. In a suit against an interurban electric railway company for injury to a passenger by reason of his arm being struck by. a car passing upon an adjoining track, it is not error for the court to instruct the jury that if they find that there were four iron bars extending horizontally'across the window of the car, equally distant from each other, the top one approximately twelve inches from the window-sill, and that plaintiff whiie sitting in the car permitted his arm or any part thereof to extend or project out beyond or over the rods, and that said act directly contributed to the accident, the plaintiff would be guilty of contributory negligence and cannot recover.
    (No. 9814
    Decided October 16, 1906.)
    
      Error to the Circuit Court of Clermont County.
    Hollis Hancock, defendant in error, brought action in the common pleas of Clermont to recover for an injury received while a passenger on a car of The Interurban Railway & Terminal Company, being operated' at the time on a double track railway used in common by that company and by The Cincinnati, Georgetown & Portsmouth Railroad Company, both operating electric cars independently of each other. His amended petition charges that the accident took place June 5, 1903. The car on which he was riding was going east on Eastern' avenue, in the city of Cincinnati, and at the same time a car of the other company was going west, and both at the time on a slight curve. Plaintiff took a seat upon the left side of the car and rested his left arm upon a rail at one of the windows, and while thus seated was struck by a car or some object extended therefrom owned and operated by The Cincinnati, Georgetown & Portsmouth Company. The bar on which plaintiff’s arm rested was so located that passengers would naturally rest their arms thereon, and that passengers had been in the habit of so resting their arms, of all of which defendants had knowledge. No notice or warning was given plaintiff. The left arm was fractured below the elbow and a comminuted fracture resulted at the elbow. The negligence charged was that of operating cars too wide for the space between the tracks, and for running past each other at a dangerous and unreasonable rate of speed, and in not providing proper guard screens or other appliances on the cars and not warning passengers of danger.
    
      By its answer the Interurban Company admitted that plaintiff was a passenger on one of its cars at the time and place alleged, and denied all other allegations. The other defendant denied all the allegations of the petition, and both defendants averred that whatever injury the plaintiff received was caused by his own negligence and want of proper care.
    It appeared by the testimony that plaintiff was seated in the last seat in the car, on the left-hand side at an open window. All the windows of the car were open, the window-frame dropping down into a box arrangement. The sill was about six inches above the seat. On the outside of the car, and across all the windows, the ends as well as sides, were four iron rods or bars equally distant from each other, the top rod being approximately twelve inches above the window-sill. The plaintiff placed his left arm on the top of and over the rods. He described it by saying: I was leaning back with my arm resting on the rod of the car, my hand on the inside. The accident occurred at a slight curve in the tracks, and was occasioned by the arm being struck by the west-bound car. “I had my arm,” the plaintiff further stated, “resting on one of these rods across the window, and was struck by a Cincinnati, Georgetown & Portsmouth car; I saw the car and the handles on the side. It was an open car.”
    The tracks were owned by the Cincinnati traction company, and. the defendants operated their' interurban cars thereon by a traffic arrangement recently entered into. Evidence given as to the distance between the two cars on the inside tended to show that the space between the closed car and the handles of the open car was from three to four inches, but as the negligence of the defendants seems to be practically conceded, and was assumed by the trial court, it is not necessary to take further space as to this phase of the case. The plaintiff was a stationary engineer, employed at the water works in the village of California, and took the car at Cincinnati to go to that place. He had ridden upon the new cars operated by defendants over this part of the road once or twice before, but it does not appear that on either of those occasions he had ridden on the side of the car next the other track.
    In the charge to the jury the trial judge, among other things, instructed them that: “If you find from the evidence that the plaintiff, at the time of the alleged accident and injury, was riding in one of the cars of The Interurban Railway & Terminal Company, one of the defendants herein, and you further find that there were four iron bars extending horizontally across the windows of said car, equally distant from each other, the top rod of which was approximately twelve inches from the window-sill, and you find that plaintiff, while seated in this car, permitted or allowed his arm or any part thereof to extend or project out beyond or over said rods, and that said act of plaintiff directly contributed to the accident, then I charge you that the plaintiff was guilty of contributory negligence and can not recover, and your verdict should be for the defendants.” Other parts of the general charge were in consonance with this instruction, and this constituted the law of the case respecting the matter of contributory negligence for the jury’s guidance. A verdict for defendants was returned which was followed by judgment thereon. This instruction the circuit court held to be erroneous and the judgment was by that court for that reason reversed. The defendants below bring error.
    
      Mr. Frank F. Dinsmore; Mr. Charles M. Leslie and Messrs. Nichols & Nichols, for plaintiffs in error.
    Projecting arm out of a window of a steam railroad car is negligence as a matter of law. Dunn v. Seaboard, etc., R. Co., 78 Va., 645; Richmond, etc., R. Co. v. Scott, 88 Va., 958; Holbrook v. Utica, etc., R. Co., 12 N. Y., 236, 244; Carrico v. W. Va. C. & P. R. Co., 35 W. Va., 389.
    It has been determined by the great weight of authority that a passenger on a steam railway car who permits his arm or any part of his body to extend out of the window beyond the side of the car, is as a matter of law guilty of contributory negligence and can not recover, if injured, even though the window is neither barred nor screened in any manner.
    The reasons usually given for this proposition of law in the various cases referred to, are the speed of the train, the proximity of other tracks and obstacles along the line of the road, the necessity which passengers are under of conforming to the accommodations provided for them, the necessary requirement that they should remain within the cars and not expose themselves beyond the same, and the general and well known circumstances under which railroad trains are usually operated. Todd v. Old Colony & Fall River Rail
      
      road Co., 3 Allen, 18; Todd v. Old Colony & Fall River Railroad Co., 7 Allen, 207; Indianapolis & Cincinnati Railroad Co. v. Rutherford, 29 Inch, 83; Pittsburg & C. Railroad Company v. Andrews, 39 Md., 329; Morel v. Mississippi Valley Life Insurance Company, 4 Bush., 535; Louisville & Nashville Railroad Co. v. Sickings, 5 Bush., 1; 68 Ky., 1; Favre v. Louisville & Nashville Railroad Co., 91 Ky., 541; Clark’s Administrator v. Louisville & Nashville Railroad Co., 101 Ky., 34.
    The leading cases adopting the contrary rule are New Jersey R. Co. v. Kennard, 21 Pa. St., 203, and Spencer v. Milwaukee & P. du C. R. Co., 17 Wis., 488. The argument in these cases is practically the same. It is that.the seats in railroad cars are so constructed that it is convenient for a passenger to rest his arm on a window-sill and that all persons unconsciously do so while riding in cars. A custom, it is claimed, which is so general among people, can not be said to be a negligent one or one which in law is imprudent. These cases claimed the rule to be that it was not negligence, as a matter of law, to protrude the arm from the window, but it was a question for the jury to determine.
    This argument has been repudiated in Pennsylvania, and the Kennard case has been directly overruled in Pittsburg & C. R. Co. v. McClurg, 56 Pa. St., 294. The Wisconsin case has been cited in almost all of the cases above referred to and the argument given due consideration, but not followed.
    In Georgia, etc., Ry. Co. v. Underwood, 90 Ala., 49, the court particularly takes up the Wisconsin case, and the argument made in support of it, and refuses to follow that argument, claiming that it can not be said to be the act of a prudent man to project his arm outside the window, whether the mere laying it upon the sill be such an act or not.
    The Wisconsin case has been followed in Clerc v. Morgan’s, etc., R. R. & S. S. Co., 107 La., 370. But the court deciding that case did not seem to be aware of the array of cases on the other side of the proposition. And the Clerc case was followed without the citation of additional authority in Kird v. New Orleans, etc., Railroad Co., 109 La., 525.
    Another decision to the contrary is McCord v. Atlanta & Charlotte Air Line Railroad Co., 134 N. C, 53. The subject is discussed beginning on page 57 of the decision. The Kennard case is there cited as authority from Pennsylvania, apparently without knowing that it had been reversed by the court deciding it in the McClurg case. The Spencer case from Wisconsin is also cited. The other cases relied on are those relating to street railways which are hereinafter referred to in this brief. The line of authorities directly on the proposition from which we have quoted are not cited. The decision was undoubtedly due to the •well known criticism of the general rule by Thompson in his work on Negligence, Vol. 3, paragraph 2972, page 435.
    Beach, in his work on Contributory Negligence, Sections 155 to 159, inclusive, examines the rule and the cases in support of it, and considers the other view advocated by Thompson. The discussion is probably the best one found in any of the text-books.
    Is the same rule applicable with reference to an arm or elbow projecting from an open street car?
    The reasons given in the case of steam railroads are just as applicable to electric street railroads. Such roads operate cars on double tracks where they are necessarily close together, the speed is rapid, the accommodations for the comfort of the passenger are the same, the danger of exposing any part of the body beyond the car is just as great, and the general circumstances under which such roads are operated serve to warn the passengers to the same extent.
    The force of these reasons and the similarity between street cars and steam cars was recognized in People’s Pass. Ry. Co. v. Lauderbach, 4 Penny., 406.
    There are some decisions often cited as Establishing a different rule in street car cases, but an examination of them shows that they can be distinguished upon satisfactory grounds. The leading case in this regard is Francis v. New York Steam Co., 114 N. Y., 380.
    In Tucker v. Buffalo Railway Co., 53 Appellate Division, 571, a case somewhat similar was decided on authority of the Francis case without further examination.
    
      Germantown Passenger R. R. Co. v. Brophy, 105 Pa., St., 38, is often cited as establishing a contrary rule in street railroad cases.
    It will thus be seen that this case is not an authority to the effect that it is not negligence per se to ride with the arm out of the window of a street car. The arm in that case was wholly within the car. The Supreme Court of Pennsylvania is also on record as following the same rule in street car cases as in steam car cases, as we have above referred to in the Lauderbach case.
    
      Sanderson et al., v. Frazier, 8 Colo., 79, is. frequently cited as maintaining a different rule than the steam railroad rule. A reference to that case, however, will show it to be a stage coach case and the argument of the court drawing a distinction between a railroad car and a stage coach is so satisfactory as to withdraw that case from any consideration whatever on this subject.
    
      Seigel v. Eisen et al., 41 Cal., 109, which is frequently cited, was that of a man riding on the back platform of a street car, having hold of a railm-gTprovided for that purpose, and being inju-redj*by" a vehicle running against the car.' It can-not.'be considered as shedding much light on this subject.
    The case which contains the best argument for ü difference in the rule is Miller v. St. Louis R. Co., 5 Mo. App., 471.
    It is apparent that the distinction here drawn between street and steam cars arising from the difference in motive power, while applicable as between steam power and horse power, is not so effective when horse power gives place to electric power. This case, however, follows the Francis case in New York to the extent of deciding that no general rule can be laid down, but that each case must be determined from its own peculiar circumstances. We are warranted in assuming that in the views of the court, cases would arise in which it would be negligence per se to expose the arm from the window of a street car while in other cases it might not be.
    
      Dahlberg v. Minneapolis Street Railway Co., 32 Minn., 404, is another horse car case. The strongest case undoubtedly is Summers v. Crescent City R. Co., 34 La. Ann., 139. The Louisiana Supreme Court dissents from the general steam car rule, as we have heretofore noted in the Clerc case and the Kird case. The same court had occasion to consider a similar question in Moore v. Edison Electric Illuminating Co., 43 La. Ann., 792. The argument that the exigency of the climate of New Orleans allows a man to reasonably protrude his elbow from the window of a car is not necessarily applicable in Ohio. Schneider v. New Orleans & C. R. R. Co., 54 Fed., 466.
    This case differs from all street car cases in that the car was an interurban car and bars were placed across the windows as a warning.
    Whatever the rule may finally be determined to be in horse car cases or in ordinary electric street railway cases, is immaterial in this case, for the reason that we are here concerned with an interurban car operating from a terminus in the city to and beyond the city limits a considerable distance, and the existence of four iron rods across the window equally distant from each other, ^the top rod approximately twelve inches from the window-sill.
    There can be no doubt of the purpose of these rods. That they were placed there as a warning to the passengers must be apparent to every one. It is true that counsel for the defendant in error makes an effort to claim that these rods were placed in their position as a protection to the window, but this argument is manifestly absurd. They afford no protection to the window, as they extend only a part of the way from the windowsill.
    The various cases which we have referred to under the second subdivision of this argument in discussing the street railroad rule admit that if there is any warning of any kind it is sufficient. The early decision of the court in Pennsylvania in the Kennard case claimed that it would be easy for a steam road to place small bars or a screen across the lower part of the window as a warning. Both the Summers and the Dahlberg cases, which are the strongest ones against our claim, recognize the position which a passenger would be in if there should be any warning of any kind or any notice brought to his attention not to project his arm from the car window. Here we have the rods as a warning and the principle applicable has been decided by this court in L. S. & M. S. Railway Co. v. Ehlert, Admr., et al., 63 Ohio St., 320.
    
      Mr. Prescott Smith and Mr. D. W. Murphy, for defendant in error.
    The law applicable to this case is that which applies to street railways within the limits of a city. C., L. & A. Electric R. R. Co. v. Lohe, Admr., 68 Ohio St., 110.
    The defendant in error had worked twelve hours on the day of the injury as a stationary engineer, and in taking an easy position followed an ordinary human instinct. Anybody who has observed and is familiar with the habits of passengers upon street cars knows that the people are in the habit of riding with their arms upon the window-sills and rails at the side of the cars, and upon other convenient rests. It is natural to all human beings to take an easy position. Hutchinson on Carriers, 2d Edition by Mechem, Section 659-
    It was shown conclusively in the trial of this case that passengers were in the habit of resting their arms upon the iron rods, and in view of this trait of human nature and proof of this habit, how can a court arbitrarily say that the man of ordinary prudence would not do so. The court assumed that these rods were a warning. If they were so intended, which the defendant in error denies, the sufficiency of the warning should have been submitted to the jury. Instead of acting as a warning, they were in fact a trap. They appeared to have been put along side of the windows for the reason that the window-sill was very little above the seat, and packages and children might fall out of the window. If they had been intended to protect the passenger from extending his body from the car, a netting should have been used so as to keep childrens’ arms in. The court had no right to assume and state to the jury what the purpose of these bars were, or that the purpose was accomplished.
    The charge of the court was to the effect that if the defendant in error extended his arm over the bar at all, he was guilty of contributory negligence. According to this charge, if the arm of the defendant in error were outside the fraction of an inch, he was guilty of contributory negligence as a matter of law. As to when the question of contributory negligence shall be submitted to a jury as a matter of fact, was clearly expressed. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197.
    To the same effect is the case of The Wichita R. & L. Co., 74 Pac. Rep., 1104; and the case in Maryland, Jenkins v. B. & O. R. Co., 56 Atlantic Rep., 966.
    Many reasonable minds have decided that the fact that a passenger extends his .elbow from a window a few inches is not, in law or fact, contributory negligence. There is a well defined distinction between street car companies and steam railroads in respect to liability when a passenger is injured by reason of his body extending beyond the line of the car. This is' necessarily so for the reason that street cars are crowded frequently to their utmost limits, people ride upon running boards, they fill the front and rear platforms, they hang on to the sides and rails of the cars, and they are run at a different rate of speed and through the streets of cities, and everybody regards riding upon a street car as less dangerous than riding upon a steam car and acts differently. Notwithstanding this well marked distinction, many courts have held that it is not contributory negligence, even in the case of steam railroads, for a passenger to slightly extend.his elbow over •a window-sill. Hutchinson on Carriers, Section 658a; Hutchinson on Carriers, 2d Edition by Mechem, Section 659, entitled “The True View”; Beach on Contributory Negligence, Section 296; 2 Shearman & Redfield on Negligence, 4th Ed., Section 519; 2 Woods R. Law, 1103, Section 303; Bishop’s Non-Contract Law, Sections 1106-1107.
    We call particular attention to the case of Summers v. Crescent City R. Co., 34 La. Ann., 139. Also to the case of Tucker v. Buffalo Railway Co., 53 Appellate Division, 571, where a passenger had his elbow three inches out of the window. This case was affirmed by the Court of Appeals" of New York unanimously, 169 N. Y., 589. McCord v. Atlanta & Charlotte Air Line Railroad Co., 134 N. C., 53; Thompson on Negligence, Vol. 3, par. 2972, 435; Dahlberg v. Minneapolis St. Ry. Co., 32 Minn., 404; Spencer v. Milwaukee & P. du C. R. Co., 17 Wis., 487; Francis v. N. Y. Steam Co., 114 N. Y., 380; Breen v. N. Y. C. & H. R. R. Co., 109 N. Y., 297; Seigel v. Eisen et al., 41 Cal., 109; Clerc. v. Morgan’s, etc., R. R. & S. S. Co., 107 La. Reports, 371; Sanderson et al v. Frazier, 8 Colo., 79; Booth on Street Railways, Section 344.
    There are a great many decisions to the effect that the question whether a passenger is guilty of contributory negligence must be submitted to a jury when he is injured by riding on the running-board of a car. Fort Wayne Traction Co. v. Hardendorf, 72 N. E. Rep., 593; Kreimelmann v. Jourdan, 80 S. W. Rep., 323; Allen v. St. Louis Transit Co. et al., 183 Mo., 411; Dickinson v. Port Huron, etc., Railway Co., 53 Mich., 43; Jones v. United Railways & Electric Co., 57 Atl. Rep., 620.
   Spear, J.

It is apparent from the testimony of the plaintiff himself, that a presumption arises that his arm, or a portion of it, at the time of the accident, extended out beyond the bars, and this presumption is strengthened by the character of the injury and by the absence of any showing that the bars themselves, or any part of them, were struck by the blow by which the arm was broken. The only question being that of contributory negligence on the part of the plaintiff, this state of facts presented the question, as a matter of law, whether or not it is negligence for a passenger to purposely and unnecessarily extend his arm out of the window beyond the side of the ear. This question, as already stated, was adjudged in one way by the common pleas court and in the contrary way by the circuit court. To determine which of these views is the correct one is the question before this court.

The precise question has not heretofore been presented to this court with respect to passengers upon electric cars, nor do we find many cases bearing close relation to this one in other jurisdictions. There are, however, many decisions involving like accidents upon cars propelled by steam, which have disclosed a diversity of opinion between courts of different states. Speaking in general terms, it may be stated that projecting an arm out of the window of a steam railroad car is held’ to be • negligence per se by courts of last resort in the states of Massachusetts, Pennsylvania, Maryland, Indiana, Virginia, Kentucky, West Virginia and Alabama, and by some text-writers of excellent standing, while the contrary doctrine, i. e., that it is a question to be determined by the facts of each case, and therefore always for the jury, is held in Wisconsin, Louisiana and North Carolina, and by some text-writers of respectable standing. The reasoning in support of the holding of negligence per se is well stated by Thompson, J., in The P. & C. R. Co. v. McClurg, 56 Pa. St., 294, thus: “When a passenger on a railroad purchases his ticket it entitles him to a seat in the cars. In the seat, no part of his body is exposed to obstacles outside of the car. Pie is secure there, ordinarily, from any contact with them. Where he is thus provided with a seat, safe and secure in the absence of accident to the train, and the carrier has a safe and convenient car, well conducted and skillfully managed, his duty is performed towards the passenger. The duty of the latter on entering arises, namely, that he will conform to all the reasonable rules and regulations of the company for occupying, using and leaving the cars; and, after doing so, if injury befall him by the negligence of the carriers, they must answer; if he do not so conform, but is guilty of negligence therein, and is injured, although there may be xxegligence on part of the carrier, their servants and agents, he can not recover. * * * A passenger, on entering a railroad car, isoto be presumed to know the use of a seat, and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use. The seat he may occupy in any way most coxnfortable to himself. The window he has a right to enjoy — but not to occupy. Its use is for the benefit of all, not for the comfort alone of him who has by ac’cident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority; and if he allow it to protrude out, and is injured, is this due care on his part? He was not put there by the carriers, nor invited to go there; nor misled in regard to the fact that it is not a part of his seat, nor that its purposes, were not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and liable to be broken, without his ability to know whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the. position voluntarily or thoughtlessly taken, in a window, by contact with outside obstacles or forces, it can not be otherwise characterized than as negligence, and so to be pronounced by the court. This is undoubtedly the rule in Massachusetts: Todd v. The Old Colony Railroad Co., 3 Allen, 21; and again in 7 Allen, 207.” In P. & C. Railroad Co. v. Andrews, 39 Md., 329, the holding is: “If a passenger of mature years, voluntarily or inattentively projects his elbow or arm out of the window of a railroad car in which he is traveling, and it is injured by coming in contact with a freight car standing on a siding near the main track of the railroad, he -is not entitled to recover damages for such injury from the railroad company. The placing of his arm out of the window is an act of contributory negligence on his part, and the court should so instruct the jury, as matter of law, notwithstanding the company may have been guilty of negligence in permitting the car on the siding to be placed too near the track of the passing train.” In Ga. Pac. Railway Co. v. Underwood, 90 Ala., 49, it is observed in the opinion by McClellan, J., that: “This question is an open one in Alabama. We are, however, satisfied with the rule as formulated and supported by the great number of adjudged cases, and the texts to which we have referred. The reasons upon which they base the doctrine appear to be eminently sound. Windows are not provided in cars that passengers may project themselves through or out of them,* but for the admission of light and air. They are not intended for occupation, but for use and enjoyment without occupation. No possible necessity of the passenger can be subserved by the protrúsion of his person through them. Neither his convenience nor comfort requires that he should do so. It may be, doubtless is, true, that men of ordinary prudence and care habitually lean upon, or rest their arms upon the sills or windows by which they ride. But this is a very different thing from protrusion beyond the outer edge of the sills, and beyond the surface of the car. We can not concur in the assumption of the Wisconsin court, that prudent men are habitually given to thus projecting themselves from the windows of moving trains. Judge Thompson, 'who evinces an inclination to agree with that court, fails to indorse this assumption as to the habits of prudent men, which is the key-stone to the position announced by -it. He says: ‘It is perhaps not too strong a statement, that no person ever traveled on a railway train without at some time resting his arm on the window-sill at least, if not permitting it to protrude slightly. Conduct which is universal, is necessarily that of persons reasonably prudent’ (Thompson Carr. Passengers, p. 258). But the conduct which is assumed by him to be universal, is that of resting the arm on the sill, not permitting it to protrude even slightly' beyond. The former, prudent men may do; but we can not conceive that the latter is an act which a man of reasonable care and prudence would ever voluntarily do, much less that it is the habit of such men to so act. The former, under ordinary circumstances, is not negligence. The latter, according to the overwhelming preponderance of authority, based on sound reason, as we conceive, standing by itself, is always negligence per se, which will defeat a recovery for any injury to which it proximately contributed.” The holding of the court is that: “It is negligence per se, to be so declared by the court as matter of law, for a passenger on a steam railway to protrude his arm, hand or elbow through the window of the car while in motion, beyond the outer edge of the window, or outer surface of the car; and such negligence on his part, contributing proximately to an injury received by collision with an object passing near by, bars a recovery for damages.”

As before stated the.opposite doctrine is maintained in a number of decisions. Probably that contention is not better stated than by Cole, J., in Spencer v. The M. & P. du C. R. R. Co., 17 Wis., 487. We quote: “The party must be entirely free from negligence which contributes to the injury, and it was for the jury to say, under all the circumstances, whether the plaintiff was wanting in care and attention or not. This, it is obvious, must be so, unless the court is authorized in saying, as a matter of law, in every case, that a person who extends his hand or arm in the slightest degree out of the window of a railroad car, while the train is in motion, is chargeable with negligence, and can not recover damages if injured while in this position by the carelessness and negligence of the agents and servants of the company. Can the court lay down any such fixed, unbending rule, which is applicable to all cases and all circumstances? It appears to us clearly it can not. And certainly, when we consider the manner in which railroad cars are usually constructed, with the windows so that they can be opened, and arranged at a sufficient height from the seat so that passengers will almost unconsciously place their arms upon, the sill for support, there being no bars or slats before the window to prevent their doing so, then to say that if a passenger’s arm extends the slightest degree beyond the outside surface, he is wanting in proper care and attention, and that if an injury happens, he can not recover, because his conduct must have necessarily contributed to the result, appears to us to be laying down a very arbitrary and unreasonable rule of law. It is probably the habit of every person while riding in the cars to rest the arm upon the base of the window. If the window is open, it is liable to extend slightly outside. This we suppose is a common habit. There is always more or less space between the outside of the car and any structure erected by the side of the track, and must. necessarily be so, to accommodate the motion of the car. Passengers know this, and regulate their conduct accordingly. They do not suppose that the agents and managers of the road suffer obstacles to be so placed as barely to miss the car while passing. And it seems to us almost absurd to hold that, in every case and under all circumstances, if the party injured had his arm the smallest fraction of an inch beyond the outside surface, he was wanting in ordinary care and prudence.”

The C. & A. R. R. Co. v. Pondrom, 51 Ill., 333, is hardly in point because the rule of comparative negligence, not recognized in Ohio though then held in Illinois, is applied to the facts. The court seems to have regarded the act of the passenger in permitting his arm to slightly project outside of the window as a negligent act, slight, however, in comparison with the gross negligence of the company in permitting its freight cars, or other permanent bodies, to stand so near its tracks that passing trains would come within a few inches of such bodies, and for this reason the judgment was allowed to stand.

Other holdings of like import with that of the Wisconsin case are found in the reports of courts of last resort in the states of Louisiana and North Carolina, and some text-writers follow these cases. In this conflict of authority it would be useless to attempt to reconcile the differing decisions. We are, however, of opinion that the weight of judicial expression is with the conclusion of negligence per se where the passenger unnecessarily and heedlessly protrudes his arm beyond the window. And, after much consideration and reflection, we are also of opinion that this conclusion is supported by the sounder reasoning. The quotations hereinbéfore given from the Pennsylvania and Alabama cases adequately, and, as we think satisfactorily, support the conclusions of those courts. It is not intended to abate or modify the rule that the common carrier is bound to exercise the utmost practicable care and diligence to secure the safety of the passenger, but a duty of reasonable care as well rests upon the passenger himself. He must not heedlessly expose himself to danger, but is as much required to use reasonable care to avoid injury as the carrier is to use the greatest degree of care to protect the passenger. He must not voluntarily expose himself to needless peril. If of ordinary intelligence, the traveler knows the mode in which railroads are constructed, and the rapid rate at which trains move. He knows that on the outside are posts and barriers near to the track, and that where there is a double track, cars operated at a rapid rate are constantly passing in close proximity. With this knowledge on the part of the passenger it must be obvious that the extension of any part of his body on the outside of the car is attended with more or less risk, more or less danger. It may be debatable as to the extent of the danger under differing circumstances, but it can not admit of debate that the act is risky and invites danger. It is not a case where it ought to be said that different minds may reach different conclusions, and therefore presents a situation requiring the submission of the question of negligence or no negligence in the abstract to a jury, because such requirement exists only where different reasonable minds may reasonably differ. Nor is the objection met by the proposition that many people thus expose themselves. Many people who travel are all the time taking needless risks, but it does not follow that the taking of such risks is the habit of ordinarily prudent people. Persons are constantly jumping ón and off of cars while in motion, and many alight with their faces to the rear of the car. So, too, it is within the observation of all who have watched the management of trains, especially in the 'neighborhood of railroad yards, that persons ride on the cowcatcher or pilot even on trains running rapidly, and many of our fellow-citizens, usually those in humble station it is true, ride constantly on the bumpers of freight cars. But this does not make such acts the conduct of ordinarily prudent persons. That any of these acts have or not contributed to any injury received by the passenger in the given instance, admits of debate, and thus makes it proper to submit the question to a jury, but that they are negligent acts in themselves involving more or less risk can not rationally be disputed. Negligence is said to be such an inadvertent imperfection, by a responsible human agent, in the discharge of duty, as naturally may produce damage, and these acts are negligent acts because it is the duty of every human being to protect himself. Any act, therefore, which subjects the doer of it to unnecessary danger is a breach of that duty and in the last analysis is negligence. In failing to give proper effect to these considerations, the reasoning of the court in the Wisconsin case, and in the cases which have followed it, appears to us to be at fault; the duty of the passenger possessing intelligence which enables him to foresee and avoid danger, and to exercise ordinary prudence to escape it, seems not to have been given due weight. And even in the Wisconsin case, as appears by the language of the learned judge who delivered the opinion, if there had been bars or slats before the window, the judgment might have been different. So that, should our conclusion on the abstract question of negligence be thought unsound, it is to be noted as of importance that our case is differentiated from the Wisconsin and other like cases in that in the case at bar there were bars across the window at the time of the accident..

Assuming, therefore, that the rule respecting the conduct of a passenger on a steam car is to forbid his extending his arm out of the car window without himself assuming the risk of injury, should a different rule be applied to a passenger on an interurban electric car? We are of opinion that there should not be. As such cars are now operated throughout the country they run at a rapid rate. Their. construction ordinarily, if not necessarily, involves the maintenance near the tracks of poles and barriers of various kinds. Cars running in opposite directions, as well on switches as where there is a double track, are often necessarily run near together. There is, perhaps, more necessity for locating tracks near together inside of municipalities than in the open country, and upon narrow streets it often happens that the company is required to lay the rails at less distance apart than they would prefer to place them, because.of crowded conditions and the requirements of the municipal authorities. To say that, as. a rule of law, a passenger on such car may be heedlessly negligent, exposing his person to needless danger, and visit the consequences on the interurban company upon showing negligence on its part, appears to us to be without reason. Nor is it supported by authority. On the contrary the generally recognized rule is that the passenger can not cast upon the carrier responsibility for an event, which, except for his own contributing negligence, would not have happened, and the law, as always held in this state, does not undertake, when both parties have been negligent, to measure the degree of the negligence of each. And we are of opinion that no substantial reason exists why these sanie rules of care and. of ' responsibility in the particulars stated imposed upon the passenger in the steam car ought not to be held to apply to the same passenger in an electric interurban car. We find but few reported cases arising from accidents of this character occurring on street cars. The case nearest in point to which attention has been called is that of The Peoples’ Pass. Ry. Co. v. Lauderbach, 4 Penny., 406. The injury occurred by the plaintiff’s arm being struck by a street car passing the car on which the plaintiff was riding, the claim of the company being that his arm protruded out of the car window. It was held that “where a traveler puts his elbow or an arm out of a car window voluntarily, without any qualifying circumstances impelling him to it, it must be regarded as negligence in se; and where this is the state of the evidence, it is the duty of the court to declare the act negligence in law.”

It was sought to support. the plaintiff’s case below by proof that many other people extended their arms out. Probably so. But we are unable to see how this sort of testimony ought to determine the question of ordinary care. Probably an equal number did not so extend their arms. If this kind of testimony may be resorted to, where would the inquiry end? And would the dispute be determined by showing on which side there was a majority?

Recurring again to the evidence, it appears that there were four rods or bars across the windows of the car, including the one in question, and that the highest rod was a foot above the window-sill. It was upon the top rod or bar that plaintiff rested his arm. The purpose of these rods is in dispute. It would seem that, whatever other purpose they might subserve, if any, they were calculated to warn the passenger to keep his person inside the car. It is urged that they were placed there to keep packages and children from falling out. They might serve, in a measure, to further these objects; but passengers’ arms are of more consequence than packages, and a warning to children might with equal propriety be heeded by adults. Again it is urged that they were placed outside the window to protect it. If that were the object the wonder is that they were not continued higher up. Again it is insisted that they constituted an invitation to the passenger to rest his arm upon the- upper one. As well might it be urged that the bar or strap found on summer cars, extending on one side from one end to the other, and whose manifest object has been always supposed to be to keep passengers from alighting on that side, and others from entering, is after all, not for those purposes but for the purpose of affording the passenger a convenient resting place for his arm. The proposition surely lacks reason.

Coming now to the charge, it is to be noted that the court' left to the jury the matter of the location of the bars, the question of whether or not the plaintiff permitted his arm or any part of it to extend out beyond or over the bars, and whether or not that act contributed to the accident, holding that if all those propositions were found affirmatively then and in such case there could be no recovery. If we are correct in the deductions hereinbefore made respecting the duty of the passenger, then this charge properly stated the rule of law, and the giving of it to the jury was not error. We think the charge was correct and that in reversing the judgment of the common pleas because of this instruction the learned circuit court erred. The judgment of that court will be reversed and that of the common pleas affirmed.

Reversed.

Sitauck, C. J., Price, Crew, Summers and Davis, JJ., concur.  