Barclay, J.
At the trial the defendant insisted that the testimony did not warrant the submission of the case to the .jury, because it disclosed plaintiff’s own negligence, as a clear conclusion of law, in the premises. But that objection was overruled, and an instruction in the nature of a demurrer to the evidence was refused.
[660]*660I. This presents the first point for decision. The rule governing its consideration is well understood.
It is for the court to say, in the first instance, whether the showing made by the plaintiff (with every reasonable inference therefrom, favorable to him) legitimately tends to support the issues on his -behalf. If the court so holds, it is for the triers of fact then to respond whether or not that showing is satisfactory and convincing to establish the truth of the facts upon which the submitted case rests.
In the present action the question must be determined whether plaintiff exercised ordinary care for his own safety; or, to put the statement into a somewhat more practical form, whether his conduct in the opinion of the court, was such as a person of ordinary prudence and caution, in the same circumstances, would diave exhibited; according to the usual and general experience of men. It is for the court to declare whether the evidence tends to establish such care on his part. If no reasonable view of the testimony will justly permit that inference then it was error in the trial judge to submit that question to the jury.
The law of negligence does not differ substantially from that on other topics in this regard. It is the province of the ,court generally to determine whether testimony tends to prove a disputed fact. It is, after-wards, for the jury to determine whether it does prove it.
To ascertain whether plaintiff’s evidence has any fair tendency to show that he used ordinary prudence on the occasion in question, it is necessary to go into some details of the case.
As a witness at the trial, plaintiff testified that he and his brother started from the home of the latter to go to the union depot. They went to the elevated station at James street to take defendant’s line of cars. It was dark, between seven and eight o’clock p. m. The train was already there when they arrived. It consisted [661]*661of a If comotive and two passenger coaches. The station áW surrounding platform were not illuminated, but theife was an electric light in the street near by and the passenger cars were lit as usual. Plaintiff’s brother was ahead of him and managed to get upon the train while in motion, and took a seat in the forward car. When the hind car came along, plaintiff undertook to get upon its rear platform. He was carrying a paper box containing a dozen wine glasses. The steps of this car platform were covered with sheet-iron, and there was a gate (two feet and eight inches high) in position on the platform proper, to prevent entrance by that way. Plaintiff put the box of glasses óver the gate, upon the steps. They were afterwards found there uninjured. After twice slipping in his effort to gain a foothold on the sheet-iron, covering the steps, he got hold of the gate, and thus supported was able to stand on the covering and to maintain that position as the train left the station, and moved on until he was struck by the cattle and knocked off. He declares that owing to the insufficiency of light he did not see the gate until the car had passed beyond the depot platform ; but when asked categorically on cross-examination, “How did you get that box over?” replied, “That is something I cannot tell.” He also said that if he had known that the gate was closed and the sheet-.iron there he would not have attempted to get on. He admitted having grasped the handle or rail at the side of the rear platform before he tried to obtain a foothold, and that he made two ineffectual attempts to stand there, before he succeeded. He did not know of the existence of the cattle chute, and was generally unfamiliar with defendant’s road, being a stranger in Kansas City ; but he had previously been a passenger on elevated railways in New York.
We do. not purport to give a full outline of his testimony, but merely such parts of it as form the basis .of the conclusion we shall announce.
[662]*662Tlie defendant’s passenger station and the railway itself were erected at such a height above the ground as made it a hazardous undertaking to attempt to board a car there while in motion, even if the steps and platform thereof were as open as those of surface railways usually are. Steam was the motive power in use on defendant’s road. The instances are, at best, exceptional in which an attempt to board a moving steam railway coach can be viewed as consistent with ordinary care. They are still more exceptional in which an effort to board an elevated passenger train in motion can be so held.
The plaintiff was certainly bound to use his eyes before he attempted to enter the car at any point. It is not satisfactory to assert ( as an excuse for not doing so) that the station was dark and illy lighted, considering the other facts in evidence here. The 'lights inside the car were burning, and plaintiff could not have placed his paper-box of wine glasses over the gate in a position of safety on the car steps (inside the sheet-iron covering), without sufficient view and notice of the real condition of things to put him on his guard. That condition was, of itself, a most emphatic warning to him, as to all other persons, that ingress to the car at that point was prohibited'; and when he observed that the car steps were covered and closed, so that his foot slipped off at his first attempt to get upon them, his attention was necessarily still more directly drawn to the barrier placed there to prevent an entrance. His persistency thereafter, in view of the state of affairs open to his immediate observation, was at his own risk. We think the court should have so told the jury.
No other reasonable inference can be drawn, from the admissions of the plaintiff himself, than that his action in the circumstances was such as no person of ordinary prudence and caution, in the same situation, would have taken.
‘ II. But it is next claimed that the conductor of defendant’s train might have averted plaintiff’s injury [663]*663by the exercise of proper care after the perilous position of the latter was discovered.
This contention rests on the evidence of the plaintiff’ s brother, touching what took place in the car after he entered. Its substance appears in the statement accompanying the opinion. From it we clearly see that the brother, who heard all that the conductor heard, and might naturally be expected in the circumstances to be more keenly alert on such a subject than the latter, had no idea that the plaintiff was in peril.
Moreover the cattle chute was not over two hundred and forty feet distant from the James street station, and, at the rate of ten miles an hour, would be reached by plaintiff in his dangerous position, within less than twenty seconds after leaving that station. -At that speed (the usual one) the train could be stopped within one hundred feet, but how long the interview, narrated by the brother lasted, does not appear. It closed just as the train passed the stock-drive or “chute,” it seems.
The statement of Anderson that a man was on the end of the car was followed by the remark that he had a lamp.
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Barclay, J.
At the trial the defendant insisted that the testimony did not warrant the submission of the case to the .jury, because it disclosed plaintiff’s own negligence, as a clear conclusion of law, in the premises. But that objection was overruled, and an instruction in the nature of a demurrer to the evidence was refused.
[660]*660I. This presents the first point for decision. The rule governing its consideration is well understood.
It is for the court to say, in the first instance, whether the showing made by the plaintiff (with every reasonable inference therefrom, favorable to him) legitimately tends to support the issues on his -behalf. If the court so holds, it is for the triers of fact then to respond whether or not that showing is satisfactory and convincing to establish the truth of the facts upon which the submitted case rests.
In the present action the question must be determined whether plaintiff exercised ordinary care for his own safety; or, to put the statement into a somewhat more practical form, whether his conduct in the opinion of the court, was such as a person of ordinary prudence and caution, in the same circumstances, would diave exhibited; according to the usual and general experience of men. It is for the court to declare whether the evidence tends to establish such care on his part. If no reasonable view of the testimony will justly permit that inference then it was error in the trial judge to submit that question to the jury.
The law of negligence does not differ substantially from that on other topics in this regard. It is the province of the ,court generally to determine whether testimony tends to prove a disputed fact. It is, after-wards, for the jury to determine whether it does prove it.
To ascertain whether plaintiff’s evidence has any fair tendency to show that he used ordinary prudence on the occasion in question, it is necessary to go into some details of the case.
As a witness at the trial, plaintiff testified that he and his brother started from the home of the latter to go to the union depot. They went to the elevated station at James street to take defendant’s line of cars. It was dark, between seven and eight o’clock p. m. The train was already there when they arrived. It consisted [661]*661of a If comotive and two passenger coaches. The station áW surrounding platform were not illuminated, but theife was an electric light in the street near by and the passenger cars were lit as usual. Plaintiff’s brother was ahead of him and managed to get upon the train while in motion, and took a seat in the forward car. When the hind car came along, plaintiff undertook to get upon its rear platform. He was carrying a paper box containing a dozen wine glasses. The steps of this car platform were covered with sheet-iron, and there was a gate (two feet and eight inches high) in position on the platform proper, to prevent entrance by that way. Plaintiff put the box of glasses óver the gate, upon the steps. They were afterwards found there uninjured. After twice slipping in his effort to gain a foothold on the sheet-iron, covering the steps, he got hold of the gate, and thus supported was able to stand on the covering and to maintain that position as the train left the station, and moved on until he was struck by the cattle and knocked off. He declares that owing to the insufficiency of light he did not see the gate until the car had passed beyond the depot platform ; but when asked categorically on cross-examination, “How did you get that box over?” replied, “That is something I cannot tell.” He also said that if he had known that the gate was closed and the sheet-.iron there he would not have attempted to get on. He admitted having grasped the handle or rail at the side of the rear platform before he tried to obtain a foothold, and that he made two ineffectual attempts to stand there, before he succeeded. He did not know of the existence of the cattle chute, and was generally unfamiliar with defendant’s road, being a stranger in Kansas City ; but he had previously been a passenger on elevated railways in New York.
We do. not purport to give a full outline of his testimony, but merely such parts of it as form the basis .of the conclusion we shall announce.
[662]*662Tlie defendant’s passenger station and the railway itself were erected at such a height above the ground as made it a hazardous undertaking to attempt to board a car there while in motion, even if the steps and platform thereof were as open as those of surface railways usually are. Steam was the motive power in use on defendant’s road. The instances are, at best, exceptional in which an attempt to board a moving steam railway coach can be viewed as consistent with ordinary care. They are still more exceptional in which an effort to board an elevated passenger train in motion can be so held.
The plaintiff was certainly bound to use his eyes before he attempted to enter the car at any point. It is not satisfactory to assert ( as an excuse for not doing so) that the station was dark and illy lighted, considering the other facts in evidence here. The 'lights inside the car were burning, and plaintiff could not have placed his paper-box of wine glasses over the gate in a position of safety on the car steps (inside the sheet-iron covering), without sufficient view and notice of the real condition of things to put him on his guard. That condition was, of itself, a most emphatic warning to him, as to all other persons, that ingress to the car at that point was prohibited'; and when he observed that the car steps were covered and closed, so that his foot slipped off at his first attempt to get upon them, his attention was necessarily still more directly drawn to the barrier placed there to prevent an entrance. His persistency thereafter, in view of the state of affairs open to his immediate observation, was at his own risk. We think the court should have so told the jury.
No other reasonable inference can be drawn, from the admissions of the plaintiff himself, than that his action in the circumstances was such as no person of ordinary prudence and caution, in the same situation, would have taken.
‘ II. But it is next claimed that the conductor of defendant’s train might have averted plaintiff’s injury [663]*663by the exercise of proper care after the perilous position of the latter was discovered.
This contention rests on the evidence of the plaintiff’ s brother, touching what took place in the car after he entered. Its substance appears in the statement accompanying the opinion. From it we clearly see that the brother, who heard all that the conductor heard, and might naturally be expected in the circumstances to be more keenly alert on such a subject than the latter, had no idea that the plaintiff was in peril.
Moreover the cattle chute was not over two hundred and forty feet distant from the James street station, and, at the rate of ten miles an hour, would be reached by plaintiff in his dangerous position, within less than twenty seconds after leaving that station. -At that speed (the usual one) the train could be stopped within one hundred feet, but how long the interview, narrated by the brother lasted, does not appear. It closed just as the train passed the stock-drive or “chute,” it seems.
The statement of Anderson that a man was on the end of the car was followed by the remark that he had a lamp. From which it would naturally be inferred that the man was some train employe in the performance of his duty, not some, other person in danger, as later proved to be the fact.
We see nothing in this evidence to warrant an inference of want of care on defendant’s part with regard to discovering the peril of plaintiff, or justifying the application of the principle that might have come into play in the case, had notice of his danger been given in season to avert the calamity.
III. The dangerous proximity of defendant’s elevated railway to the cattle chute of the packing company is next suggested as constituting actionable negligence on defendant’s part. Had the position occupied by plaintiff on the train been intended or sanctioned for the use of passengers; this contention [664]*664would command serious consideration ; but it was obviously not. As we have seen the place bore at every point clear indications that riding there was forbidden. No written or printed notice could have given plainer warning to that effect, than the gate and covered steps themselves. There is absolutely nothing in the case indicating defendant’s consent to transport him there. TIis injury is directly traceable to the extra hazard of the position he voluntarily took, contrary to the evident intention, practice and warning of the carrier. He, therefore, must be held to have assumed the risks to be met in riding as he did.
The unfortunate accident grew out of plaintiff’s lack of knowledge of any such danger as the cattle chute created. But for that obstacle he might possibly have been safely caxTied to the next station, despite his novel selection of a place to ride. But he cannot justly charge upon defendant the responsibility for his want of knowledge of his surroundings in a strange city.
Plowever much his case may command the sympathy of all right-feeling men, it creates no legal liability on defendant’s part to indemnify him for the consequences of neglect of ordinary care for his own safety.
The trial court should have declared that upon the evidence plaintiff had no cause of action.
In view of this conclusion, upon which we all entertain no doubt, it is not necessary to discuss any of the other questions raised.
IY. My associates entertain a positive opinion that where (as here) it appears that, in every view of the facts, plaintiff has no right of action whatever, the cause should not be remanded for a new trial upon the reversal of an erroneous judgment. Many cogent reasons, no doubt, can be given for that opinion, and it has the sanction of precedents, extending through many years. My pei’sonal impression has been that, where the trial,court in an action at law, refuses to [665]*665nonsuit, and we conclude that its ruling in that regard is erroneous, the cause should, on a reversal of the judgment, be remanded so that plaintiff might, if so advised, dismiss his action, or take a voluntary nonsuit, and thus avoid such effects as might possibly be held to flow from a plain judgment of reversal. Plaintiff would have the right to take such course in the circuit court before the latter could properly enter a final judgment against him (R. S. 1889, sec. 2084; Lawrence v. Shreve (1858), 26 Mo. 492); and the reviewing power of this court extends no farther in actions at law, than to pronounce such judgment as the trial court “ ought to have given.” R. S. 1889, sec. 2304. But this view of the subject has not met the approval of my colleagues and the point involved is not such as seems to demand further persistency on my part to maintain' an individual opinion.
Accordingly, the judgment of the circuit court is reversed,
with the concurrence of all the judges of this division.