English, Judge :
This was an action of trespass on the case brought by John II. Eisher, an infant acting by his next friend, John S. Eisher, against the West Virginia & Pittsburg Railroad Company in the Circuit Court of Lewis county, to recover from the defendant damages alleged to have been occa.ion-ed by the negligence of the defendant in carrying the plaintiff as a passenger over its road from the town of Weston to the town of Buckhannon in this state. The defendant appeared at rules, demurred to the declaration and pleaded not guilty; also filed a special plea in writing setting up therein that at the time the injury occurred and before that time the defendant had leased its road to the Baltimore & Ohio Railroad, and the said last named road was the lessee in possession of and operating the said road, at the time the alleged injury occurred, and should have been made sole defendant, which plea was rejected, and issue was joined upon the plea of not guilty. The ease was tried before E. G. Linn, special judge. The defendant’s demurrer to the declaration -was overruled, and, it appearing that said John II. Eisher was then over the age of twenty one years, it was ordered that the case proceed in the name of said John II. Eisher. On the 15th day of March, 1893, the ease was submitted to a jury, who rendered a verdict, for the plain[370]*370tiff assessing his damages at three thousand and five hundred dollars; and thereupon the defendant moved the court to set aside the verdict and grant it a new trial, on the ground that the same was contrary to the instructions of the court and to the evidence and on other grounds set forth in the bill of exceptions, which motion was overruled ; and judgment was rendered for the plaintiff on the verdict; and this writ of error was applied for and obtained.
The first error assigned by the plaintiff in error is that the count erred by rejecting the plea in writing filed by the defendant. This assignment, however, I do not regard as well taken, as the question raised by this plea was before this Court in the case of Ricketts v. Railway Co., 33 W. Va. 433 (10 S. E. Rep. 801) in which it was held that “a railroad company chartered by a state can not without distinct legislative authority by lease, or any other contract or arrangement turn over to another company its road and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the roadthe plea relied on in this case averring that the defendant had leased its road and rolling stock, etc., to the Baltimore & Ohio Railroad Company before this injury occurred, and the Baltimore & Ohio Railroad Company was the lessee of the defendant at the time supposed grievance occurred, etc.
The next assignment of error pertains to the action of the court in giving instructions No. 1 and 2 asked for by the plaintiff, which read as follows:
Instruction No. 1: “The court instructs the jury that, in the transportation of passengers, a railroad company is bound to exercise more than ordinary care and diligence, and is liable for the slightest negligence, against which prudence and foresight could have guarded.”
Instruction No. 2: “The court instructs the jury that although the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the injury, yet if they find from the evidence that the defendant, after having notice of plaintiff’s dangerous exposure, did not exercise ordinary care and diligence to prevent his injury, the plaintiff’s negligence will not excuse nor relieve the defendant from liability.”
[371]*371These instructions were objected to by the defendant, the objection was overruled by the court, the instructions given to the jury, and the defendant excepted. Do they propound the law correctly ?
As to instruction J$To. 1, in my opinion the Circuit Court erred in giving it to the'jury without qualification. While it is true that it is the duty of a common carrier of passengers to use the utmost care in providing for their safety, yet I can well see how a jury might be misled by the instruction referred to. To instruct the jury that, in the transportation of passengers, a railroad company is bound to exercise more than ordinary care and diligence, is a proposition we can readily accede to ; but to add, without qualification, that it is liable for the slightest negligence, against which prudence and foresight could have guarded, appears to me to have a direct tendency to mislead the jury to the prejudice of the defendant, especially under the state of facts disclosed in this case, unless the jury had been further instructed, that the plaintiff could not recover, if he himself was guilty of contributory negligence. ' The facts proved in this case clearly show that the plaintiff was guilty of contributory negligence; and instruction jSTo. 1, taken by itself, leaving out any reference to the question of contributory negligence, would have a strong tendency to mislead the jury and should not have been given. Barton states the law, in his Law Practice, as follows (in volume 1, p. 656): “The court is not bound to give an instruction upon a mere abstract question, and, if it does so under circumstances calculated to mislead the jury, such an.instruction will be error for which the judgment will be reversed;” citing Pasley v. English, 10 Gratt. 236. Again, in the case of McKelvey v. Railway Co., 35 W. Va. 501 (14 S. E. Rep. 261) sixth point of syllabus, this Court held that a bad instruction is not cured by a good one; though they be given on the motion of adverse litigants; the bad instruction should be withdrawn. BRAnnon, J., delivering the opinion of the-court in that case says : “I find it stated in Railroad Co. v. Maffit, 67 Ill. 431, that the fact, that the law is accurately stated on one side, will not obviate errors of instruction on the other side; and in Imhoff v. Railroad Co., 20 [372]*372Wis. 362. ‘Error in instructions is not cured by the court afterwards instructing directly to the contrary, and so leaving the jury to digest the contradiction. The error should be retracted ;’ also, in Clay v. Miller, 3 T. B. Mon. 146, ‘An erroneous instruction can not be corrected by another instruction which may state the law accurately, unless the erroneous instruction be thereby plainly withdrawn f ” citing Kingen v. State, Ind. 518; Railroad Company v. Kendrick, 40 Miss. 374; Railroad Company v. Stallmann, 22 Ohio St. 2.
In considering the propriety of instruction Ro. 2, which was asked for by the plaintiff and given to the jury by the court, it becomes necessary to inquire, what is intended in said instruction by the words “dangerous exposure,” of which it is implied by the phraseology of the'instruction that the defendant had notice, and what was the proximate cause of the injury complained of: First, let us inquire what was the condition of the plaintiff at the time he took passage on the cars, and at the time the accident occurred. Oh'cross-examination the plaintiff himself was asked, “Had you been drinking when you were making that trip?” Ilis reply was, “I had a drink or two.” lie was asked, “Yon were a litttle intoxicated?” and answered “I wasn’t drunk.” Again the question was propounded, “Where did you drink?” and he eaid in reply, “I don’t know but that I took a drink or two on the traiu. I think I did.” lie also stated that his father was in the car.
Row, when we consider the fact, shown by the testimony, that the car was running at the rate of ten miles an hour, and that this young man met with his sad misfortune only seven miles and a half from Weston, aud that he had taken two drinks in travelling that distance, the strong inference is that his object in remaining on the platform was not to get fresh air, as he stated, but that he might take an occasional drink as he went along. The quantity he took at these drinks does not appear. Neither does it appear that the conductor had notice that he had liquor with him: But the inference is plain that his condition at the time of the accident may have been very different from what it was at the time the conductor took up his ticket.
[373]*373Row, then, as to the position the plaintiff was occupying at the time of the accident. He says: “I was standing on the platform; may be one step down on the steps. Had one hand hold of the iron next to the coach, and one in front of the coach, on the left side, going to Buekhan-non.” That he was standing there, and let let loose with his left hand, still holding with his right hand, and the train made a sudden tilt, and threw him right face first. That he held on, but his hand slipped down to'the bottom of the rail, as far as it would go, and he let loose and fell. And on cross examination, in answer to the question, “You say you were on the steps and went out?” answered “Yes, sir.”
Row the exposed position the plaintiff .took upon the steps of the car was manifestly the proximate cause of his injury; and no witness in the case states that the conduct- or or any other officer of the car or train had notice of the fact, that the plaintiff was on the steps holding to the iron railing on the sides thereof. This Court has frequently held, that instructions, which are not based upon or applicable to the facts proven, should not he given to the jury, although they maybe correct, as abstract principles of law. See Coffman v. Hedrick, 32 W. Va. 120 (9 S. E. Rep. 65); Kinsley v. County Court, 31 W. Va. 464 (7 S. E. Rep. 445); Kerr v. Lunsford, 31 W. Va. 662 (8 S. E. Rep. 493); Evan’s Case, 33 W. Va. 417 (10 S. E. Rep. 792); Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155 (11 S. E. Rep. 1009).
In the case of Carrico v. Railway Co., 35 W. Va. 390 (14 S. E. Rep. 12) in the seventh point of the syllabus, this Court' held as follows: “The general rule in regard to contributory negligence is, that if the negligence be mutual on the part of the plaintiff and defendant, there can not he a recovery. But the injury would have happened just the same, although the plaintiff had been in no wise negligent, his negligence will not prevent his recovery, or if the defendant, after he has discovered the dangerous exposure, refuses or neglects to practice any care or precaution to prevent the injury, he will be held liable.”
The instruction we are considering in this case should [374]*374not have been given to the jury, because it is not based upon or applicable to the facts proven. It assumes, that the evidence shows, that some officer of the train had notice of the plaintiff’s exposed position on the steps of the car, while no witness proves such notice. The fact, that the conductor had notice of the fact, that the plaintiff was on the platform of the car, will avail him nothing, unless he received his injury because he occupied that position. We can well see a great difference, so far as danger is concerned, between occupying a position on the steps of a moving car and occupying the platform, which the evidence shows was surrounded by railing; and notice of one would be no notice whatever of the other, and the defendant could not have been expected to exercise ordinary care or diligence to prevent the plaintiff’s injury, until it had notice of his dangerous position. The plaintiff' might-have gone on to the engine or the cowcatcher, and thus exposed himself to imminent danger; but if he had done so without the knowledge of the defendant, although he had been injured as a consequence, the defendant would not be liable. For these reasons I think said instruction Ho. 2 should have been rejected.
The next assignment of error is to the action of the court in refusing instructions Hos. 4 and [> asked for by the defendant. These instructions, as asked for by the defendant, were modified by the court, and given as follows:
Instruction Ho. 4: “If the jury believe from the evidence that both the plaintiff and defendant were guilty of negligence; that such negligence of both was concurrent, or running together, and co-operated to produce the injury complained of, they should find for the defendant, unless it appears from the evidence that the defendant had notice of the negligence of the plaintiff, and refused or neglected to practice any care or precaution to prevent the injury.’’
Instruction Ho. 5: “If the jury believe from the evidence that the injury in the declaration mentioned was the result of the concurrent negligence of both the plaintiff and the defandant, the jury has no right to apportion thekfault, and to find a verdict for the plaintiff upon that ground. But in such case they should iiud for the defendant, uuless [375]*375they further find that the defendant had knowledge of the danger of the plaintiff, and refused or failed to practice any care or precaution to prevent the injury.”
The modification in each of these instructions consists in the words following the word “unless;” and these instructions, in the form in which they were given as modified, were erroneous and should not have been given, because the modification is not supported by or applicabls to the evidence in the ease.
The defendant by its counsel moved the court to set aside the verdict of the jury and grant it a hew trial on several grounds, and, among others, because the verdict was contrary to the instructions of the court, and the court at the instance of the defendant, instructed the jury that, “as a matter of law, a regulation of a railroad company which forbids passengers to stand upon the platform while the car is in motion is a reasonable and proper rule; and if a passenger, in violation of such regulation, unnecessarily exposes himself, lie does so at his own peril.” Row, Mr. Jeffries, the conductor on cross-examination, when asked what he said to the plaintiff, replied t-liat he took plaintiff’s ticket up, and told him to go inside and ride ; that it was against the rules; and after going three miles he again asked him to go in ; that it was against the rules of the railroad company ; and he talked very mildly, and said he wanted to ride out there, and get some air. Upon the question of fact as to whether the conductor told plaintiff it was against the rules of the company, the plaintiff himself, when placed on the stand, does not contradict the conductor, and there is no conflict upon that point of evidence.
Upon this question, Beach on Contributory Regligence, in section 151, states the law as follows: “If the passenger would hold the carrier to the full measure of his responsibility for safe carriage, he must conform to all the reasonable rules the carrier makes, looking to the passenger’s safety and convenience; and, if he violates such rules and regulations by riding where he has no right to ride, it is no very harsh rule that requires him to do it at his own peril.” . After commenting on the law, in the same section, as to where the conductor or trainmen consent or encourage a [376]*376passenger to.ride in a place of danger, the section concludes with a quotation from the opinion of the court in the case of Railroad Co. v. Langdon, 92 Pa. St. 21, as follows: “We are unable to see how. a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger, so as to make the company responsible.” Beach on Contributory negligence (page 347) says: “Where it appeared that the plaintiff had been drinking, was riding on the front platform (although without objection) and stepped to the lower step to permit persons -to pass, and that a sudden movement of the car, by which he was injured, was not unusual, and should not have been unexpected, it was held that a nonsuit should have been granted.” Wood on Railroads (volume 2, § 304, p. 1277) states the law on this point thus: “A passenger who voluntarily rides in a baggage car or other known place of danger in violation of the known rules of the company, and is injured in consequence of such violation, can not recover damages therefor, even though he is there by permission of the conductor; aud, in the absence of any proof upon that point, it will be presumed that the passenger knew of the danger, and the regulations forbidding passengers from riding in the baggage car;” citing Railroad Co. v. Clemmons, 55 Tex. 88. The rule is also stated — as we think, properly — in Patterson’s Railway Accident Law (page 250, § 248) where it is said : “It is both the right and the duty of the railway to make regulations for the safe conduct of its business ; but those regulations must be reasonable in themselves, and must be so published that all persons who are to be affected thereby may have an opportunity of learning the existence and effect of such regulations. Where the regulations are in themselves reasonable, and have been properly published, the passenger is bound to inform himself as to their effect, and he must conform thereto. Thus, in Sullivan v. Railroad Co., 30 Pa. St. 238; Woodward, J., said the passenger’s consent is implied to all the company’s reasonable rules and regulations for entering, occupying, and leaving their cars; and, if injury befall him by reason of his disregard of regulations which are necessary to the conduct of the business, the company are not liable in damages, even though the negligence [377]*377of their servants concurred with his own negligence in producing the mischiefciting Britton v. Railway Co., 88 N. C. 536; Railroad Co. v. Rose, 11 Feb. 177 (8 N. W. Rep. 433).
So far as publishing the rules is concerned, in the case under consideration, that was not necessary, for the reason that the conductor gave the plaintiff personal notice, that it was against the rules to ride outside the passenger car. Wood on Railroads (volume 2, p. 1272, § 303) under the heading, “Injuries Resulting from Passenger Putting Himself Voluntarily in a Dangerous Position,” says: “Railroad companies are only bound to exercise due care that a passenger is not injured through their fault, and are not required to exercise such a supervision over him as absolutely prevents his being injured by his own fault;” citing Malcom v. Railroad Co., 106 N. C. 63 (11 S. E. Rep. 187) where the text is quoted with approval. In other words if a passenger puts himself in a dangerous position, he can not claim idemnity from the company.
In a case where a stock drover was riding on an engine with several others when another engine suddenly came in sight, rouud a curve, and all the others jumped off, but the decedent, who remained and was killed, the court charged the jury that if the defendant’s employes were negligent, and the decedent was rightfully riding on the engine, the plaintiff could recover; and this was held, under the pleadings, t'o be erroneous, as it disregarded the question of contributory negligence of the decedent. Railway Co. v. Shacklet, 105 Ill. 367.
In the ease of Malcom v. Railroad Co., 109 N. C. 63 (11 S. E. Rep. 187) it was held, that a passenger on a freight train, who stands on the rear platform without holding to anything, is guilty of contributory negligeuce, and can not recover for any injury, which he may sustain, by reason of the sudden starting of the train. The court in its opinion says after speaking of the duty of the railroad to give signals before starting: “Apart from this, we are of opinion that the plaintiff was guilty of contributory negligence. ‘Railroad companies are only bound to exercise due care that a passenger in not injured through their fault, and are [378]*378not required to exercise such a supervision over him as absolutely prevents his being injured by his own fault. In other words, if a passenger puts himáelf in a dangerous position, he cau not claim indemnity from the company.’ 2 Woods R’y Law, § 303. ‘The company, as held in some of the cases, can not be expected to treat its passengers as children or to put them under restraint. Passengers must take the responsibility of informing themselves concerning the every-day incidents of railway travelling; the company could do business on no other basis. Mitchell v. Railroad Co. (Mich.) 16 N. W. Rep. 388.’ ” The court further says : “The plaintiff must have been aware of the dangerous position in which he placed himself. lie was warned of the danger by the regulations of the defendant forbiding passengers to ride upon platforms. He must have known of the sudden startings and joltings peculiar to freight trains, and he must also have known, when he placed himself upon the platform, that the train was likely to start at any moment. Notwithstanding all this, he leaves his seat in the coach, and puts himself in this dangerous position, without even taking the simple precaution of supporting himself by holding to the railing, or anything else. That no recovery can be had, under such circumstances, is, it seems to us, too plain for further discussion.”
On the question of the duty of the passenger, it was held in the case of Graville v. Railroad Co., 105 N. Y. 525 (12 N. E. Rep. 51) that “it is the duty of a passenger standing on the platform of a steam-railroad car to go inside when requested so to do by a person having charge of the train, if there is stauding room inside, although there are no vacant seats. The fact that the passenger has a well-founded ground of complaint against the railroad company, for not providing adequate accommodations for passengers, does not release him from the duty of leaving the platform. As to whether, where a passenger refuses to go inside the car when so requested, the brakeman or conductor has the right to force him to do so, quaere f”
Returning to the point as to the position occupied by the plaintiff at the time the accident occurred, it may be said that the steps of the car form a part of the platform, and [379]*379that being on tbe steps was the same as being on the platform. The steps, however, constitute no part of the platform. The steps might be removed or broken off, and the platform would still remain. The steps are the means of ingress and egress to aud from the platform, and we can not say that a party, who was standing on the steps of the car was standing on the platform. The steps must be regarded as a more dangerous place for a passenger to occupy, while the car is moving, than the platform ; and a conductor might be under the impression that a passenger was on the platform, and act very differently from what he would if he had noticed that he was standing down on the steps. It is true that when the plaintiff refused to go inside the car upon request of the conductor, the conductor might under the regulations have stopped the car aud put the plaintiff off; but no conductor under the circumstances of this case would feel warranted in resorting to such an extreme measure. While it is true this young man waq not conducting himself altogether as he should — was drinking to some extent — -yet the conductor could not say that he was so much under the influence of liquor as to render him incapable of taking care of himself, and the plaintiff himself swears that he was not drunk. Ilis father was present in the car, and was evidently trying to get his erring son to return to liis home ; and a conductor possessing the instincts of a gentleman would not feel warranted in seizing the young man and forcibly ejecting him from the cars, because he objected to going inside ; and if he had done so, he might have incurred the risk of a suit against his company. He says he was not drunk, and his counsel say the same, by putting him on the stand to contradict the conductor as to what passed between them when requested to go into the cars and also as to whether there were vacant seats in the car. It is presumed, however, that his father would not have done such an idle thing as to request the conductor to get him-to come in, if there was no room in the car. The evidence, however, shows that he was drinking before he came into the car, and after he got on the car-; and the court instructed the jury that in determining the question of contributory negligence they might take into considera[380]*380tion the condition, of the plaintiff'at the time — that is, if he were intoxicated at the time of the injury, or partly so, they might take this fact into account in determining whether he was guilty of contributory negligence.
Upon this question, Wood on Railroads (volume 2, p. 1457) states the law as follows : “The fact that the person injui’ed was at the time intoxicated does not necessarily constitute contributory negligence on his part, though this fact is to be considered with others in determining whether or not he exercised ordinary care to protect himself. One can not voluntarily incapacitate himself from ability to exercise ordinary care for his own self-protection and then set up such incapacity as an excuse for his failure to use care; and if the intoxication contributed to the injury, as a proximate cause thereof, it is a complete bar to any action for damages sustained in consequence of it" citing Railroad Co. v. Cragin, 71 Ill. 177; Railway Co. v. Pankhurst, 36 Ark. 371; Fitzgerald v. Town of Weston, 52 Wis. 354 (9 N. W. Rep. 13); Railvoad Co. v. Bell, 70 Ill. 102, and other cases.
While it is true that negligence is a mixed question of law and fact, and Wood on Railroads (volume 2 p. 1458) so states the law and says, that when there is no dispute about the facts nor any doubt as to the proper inference to he drawn from them, the question as to what is proper care may be a question of law; but where either the facts or the conclusions to be drawn therefrom are at all doubtful the question must always be submitted to a jury-And because in determining the character of plaintiff’s conduct, it is necessary to find whether or not he acted as a man of ordinary prudence would’ have acted under the same circumstances, the question is necessarily one for the jury except in very plain cases, where there is no room for a reasonable difference of opinion. If the facts are such, that a verdict for the plaintiff' could not be sustained, the question is one of law and should be determined by the court. Upon this question the case of Railroad Co. v. Landuer (Neb.) 54 N. W. Rep. 976, states the law as follows:
“It is the settled rule in this state that where different minds may draw different inferences from the same state of [381]*381facts, as to whether such facts establish negligence, it is a proper question for the jury, and not forthecom’t; but that rule is subject to the qualification that theinference of negligence must be a reasonable one. Where it is impossible to infer negligence from the established facts without reasoning irrationally, and contrary to common sense and the experience of average men, it is not a question for the jury, and the court should direct a verdict for the defendant.”
What negligence was the defendant guilty of in this case? If the injury resulted from intoxication, this was the fault of the plaintiff not of the defendant. If he was slightly intoxicated, when he took the train, and increased his intoxication, after he became a passenger this fact does not appear to have been known to the defendant; and it is held in the case of Milliman v. Railroad Co. 66 N. Y. 643, that “the fact that a man is intoxicated does not alone deprive him of the right to ride upon a railroad car, nor does it free the company from its duty to render him as a passenger due care. It is the duty of a carrier of passengers to observe the same care to a drunken as to a sober passenger.” It does not appear, that any officer of the train knew of the dangerous position "the plaintiff had taken on the steps It does appear, that he refused to go into the car, when politely invited so to do ; and he does not complain, that the car was not stopped, and himself ejected therefrom. It can not be said that the defendant after it discovered the dangerous exposure, refused or neglected to practice any care or precaution to prevent'the injury. Heither can we say that the injury would have happened just the same,-although the plaintiff had been in no wise negligent. Therefore, the defendant can not be held liable, under our ruling in the case of Carrico v. Railway Co., 35 W. Va. 390 (14 S. E. Rep. 12.)
As we have seen, the question of contributory negligence is a mixed question of law and fact; and, while it may be a question for the jury, yet the jury must take the questions of law involved in the case from the court, and apply them to the facts, in reaching their conclusion, and if, at the instance of the plaintiff, instructions are given to the jury [382]*382which are misleading, and not in accordance with the law, or if the jury disregards instructions which are given at the instance of the defendant, and which propound property the law, the question becomes a question for the court, and the verdict may be set aside.
My conclusion, therefore, is that the court erred in refusing to set aside the verdict in this case, and award the defendant a new trial. The judgment complained of is reversed, the verdict set aside, and a new trial awarded the defendant; and the defendant in error must pay the costs of this writ.