Mr. Justice Duell
delivered tbe opinion of tbe Court:
Tbe alleged errors will be considered in order.
1. Tbe first error is based upon tbe refusal of tbe court to instruct tbe jury that upon the whole evidence in tbe case tbe verdict should be for tbe defendant. It is insisted that it was error to refuse this instruction, first, because of a fatal defect in tbe pleadings, and, second, on account of contributory negligence. Tbe first point grows out of tbe fact that tbe District of Columbia was joined as a defendant, and that upon motion made tbe court directed a verdict in its favor which left tbe railway company tbe sole defendant. Tbe court commenced bis charge to tbe jury by a statement of this fact, and no objection was made to it, and no exception taken; and tbe rec[269]*269ord fails to disclose that the question was raised at all in any way before the trial court. It does not appear that counsel, in asking this instruction, suggested that one of the grounds asked for the direction was that a verdict had been directed for the codefendant. The objection was not taken in proper form nor in proper time. Perry, Pl. p. 126; Norman v. United States, 20 App. D. C. 494; Washington Gaslight Co. v. Lansden, 9 App. D. C. 508. Aside from this, we do not think that the objection could avail the appellant had it been taken in proper form and time.
Referring now to the question of contributory negligence as the ground upon which the court erred in not directing a verdict in favor of the defendant, we are clearly of the opinion that there is no force to the contention. When passengers upon railroads operated by steam have received injuries by reason of the protrusion of their arms out of open windows, the courts in considering such cases have differed as to whether such protrusion is, as matter of law, contributory negligence. There has also been some conflict of decisions when the injured persons have been passengers upon street cars, but the weight of authority is that the question of negligence is a question of fact for the jury, and not a question of law to be ruled upon by the court.
An instructive opinion upon this question is to be found in the dissenting opinion of Judge O’Brien, of the New York court of appeals, in Sias v. Rochester R. Co. 169 N. Y. 118, 56 L. R. A. 850, 62 N. E. 132. The case went off on a question other than that of negligence, in reference to which question a majority of the court expressed no opinion. At page 125, 56 L. R. A. 853, 62 N. E. 133, Judge O’Brien said:
“The defendant was engaged in exercising a franchise for the conveyance of the public by operating a railroad in a public street. It had the power and it was its duty to construct the railroad in such a way as not to endanger the safety of the passengers. If it constructed its tracks so close to a tree or any other physical obstruction as to endanger the safety of the traveling public it could be held to have neglected its duty, and to [270]*270have been wanting in that degree of care and prudence which the law imposed upon it, and so the courts have held in similar cases.”
And at page 127, 56 L. R. A. 854, 62 N. E. 134, he said: “Nor has this court ever held that it was contributory negligence, as matter of law, for a passenger to protrude his body slightly beyond the side of the street car, but it has held that the conduct of the passenger in such cases, whether negligent or otherwise, is a question for the jury.” Many authorities are cited in support of these propositions.
In Elliott v. Newport Street R. Co. 18 R. I. 707, 23 L. R. A. 208, 28 Atl. 338, 31 Atl. 694, a passenger riding on the foot-board of a car was hit by a trolley pole, which was 10% inches distant from the outer edge of the footboard, thrown off the car, and injured. The court held than on the testimony it could not say, as matter of law, either that the defendant was not negligent, or that the plaintiff was guilty of negligence which contributed to the accident, and that therefore the court was not warranted in directing a verdict for the defendant In Cummings v. Worcester, L. & S. Street R. Co. 166 Mass. 220, 44 N. E. 126, it was held that a street car passenger riding with part of his body projecting beyond the line of a car cannot be held, as matter of law, to be guilty of negligence, or to have assumed the risk of contact with things outside of the car, and that these questions are for the jury. See also Powers v. Boston, 154 Mass. 60, 27 N. E. 995; Miller v. St. Louis R. Co. 5 Mo. App. 477; Spencer v. Milwaukee & P. Du Ch. R. Co. 17 Wis. 487, 84 Am. Dec. 758; Summers v. Crescent City R. Co. 34 La. Ann. 139, 44 Am. Rep. 419; Tucker v. Buffalo R. Co. 53 App. Div. 571, 65 N. Y. Supp. 989, Affirmed in 169 N. Y. 589, 62 N. E. 1101.
2. Error is predicated upon the refusal of the court to instruct the jury that, should they find from the evidence that the deceased exposed or extended his arm or head, or any part of his person, beyond the outer part of the car to such an extent that he was struck by the car passing in the opposite direction, and that but for such action on his part the accident would not [271]*271have happened, they should find for the defendant. There was no error on the part of the court in refusing to charge this proposition. In Spencer v. Milwaukee & P. Du Ch. R. Co. 17 Wis. 487, 84 Am. Dec. 758, the court pertinently said: “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 as 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 cars while passing.”
The uncontradicted testimony shows that the space between two of these cars was not more than 3 inches, and it was gross negligence upon the part of the appellant to use cars which almost touched when they passed, and it was doubly negligent for them to run such cars with the panels taken out, with a running rail placed where the passengers would naturally rest their arms. At the very least, it was the duty of the company to see that one of the cars came to a full stop, and that the other passed very slowly, because, as is well known, there is more or less swaying of cars when in motion, and the peril was present whenever two open cars met, and the danger was caused by their very close proximity. As was said by the court in Geitz v. Milwaukee City R. Co. 72 Wis. 307, 39 N. W. 866: “We suppose it is common knowledge that a car being propelled upon a railroad track will be swayed by the inequalities of the track.”
3. This error is based upon the refusal of the court to instruct the jury that if the deceased changed his position after the front of the car had passed him without striking him, and that by such change of position he was struck by the car, the verdict should be for the defendant.
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Mr. Justice Duell
delivered tbe opinion of tbe Court:
Tbe alleged errors will be considered in order.
1. Tbe first error is based upon tbe refusal of tbe court to instruct tbe jury that upon the whole evidence in tbe case tbe verdict should be for tbe defendant. It is insisted that it was error to refuse this instruction, first, because of a fatal defect in tbe pleadings, and, second, on account of contributory negligence. Tbe first point grows out of tbe fact that tbe District of Columbia was joined as a defendant, and that upon motion made tbe court directed a verdict in its favor which left tbe railway company tbe sole defendant. Tbe court commenced bis charge to tbe jury by a statement of this fact, and no objection was made to it, and no exception taken; and tbe rec[269]*269ord fails to disclose that the question was raised at all in any way before the trial court. It does not appear that counsel, in asking this instruction, suggested that one of the grounds asked for the direction was that a verdict had been directed for the codefendant. The objection was not taken in proper form nor in proper time. Perry, Pl. p. 126; Norman v. United States, 20 App. D. C. 494; Washington Gaslight Co. v. Lansden, 9 App. D. C. 508. Aside from this, we do not think that the objection could avail the appellant had it been taken in proper form and time.
Referring now to the question of contributory negligence as the ground upon which the court erred in not directing a verdict in favor of the defendant, we are clearly of the opinion that there is no force to the contention. When passengers upon railroads operated by steam have received injuries by reason of the protrusion of their arms out of open windows, the courts in considering such cases have differed as to whether such protrusion is, as matter of law, contributory negligence. There has also been some conflict of decisions when the injured persons have been passengers upon street cars, but the weight of authority is that the question of negligence is a question of fact for the jury, and not a question of law to be ruled upon by the court.
An instructive opinion upon this question is to be found in the dissenting opinion of Judge O’Brien, of the New York court of appeals, in Sias v. Rochester R. Co. 169 N. Y. 118, 56 L. R. A. 850, 62 N. E. 132. The case went off on a question other than that of negligence, in reference to which question a majority of the court expressed no opinion. At page 125, 56 L. R. A. 853, 62 N. E. 133, Judge O’Brien said:
“The defendant was engaged in exercising a franchise for the conveyance of the public by operating a railroad in a public street. It had the power and it was its duty to construct the railroad in such a way as not to endanger the safety of the passengers. If it constructed its tracks so close to a tree or any other physical obstruction as to endanger the safety of the traveling public it could be held to have neglected its duty, and to [270]*270have been wanting in that degree of care and prudence which the law imposed upon it, and so the courts have held in similar cases.”
And at page 127, 56 L. R. A. 854, 62 N. E. 134, he said: “Nor has this court ever held that it was contributory negligence, as matter of law, for a passenger to protrude his body slightly beyond the side of the street car, but it has held that the conduct of the passenger in such cases, whether negligent or otherwise, is a question for the jury.” Many authorities are cited in support of these propositions.
In Elliott v. Newport Street R. Co. 18 R. I. 707, 23 L. R. A. 208, 28 Atl. 338, 31 Atl. 694, a passenger riding on the foot-board of a car was hit by a trolley pole, which was 10% inches distant from the outer edge of the footboard, thrown off the car, and injured. The court held than on the testimony it could not say, as matter of law, either that the defendant was not negligent, or that the plaintiff was guilty of negligence which contributed to the accident, and that therefore the court was not warranted in directing a verdict for the defendant In Cummings v. Worcester, L. & S. Street R. Co. 166 Mass. 220, 44 N. E. 126, it was held that a street car passenger riding with part of his body projecting beyond the line of a car cannot be held, as matter of law, to be guilty of negligence, or to have assumed the risk of contact with things outside of the car, and that these questions are for the jury. See also Powers v. Boston, 154 Mass. 60, 27 N. E. 995; Miller v. St. Louis R. Co. 5 Mo. App. 477; Spencer v. Milwaukee & P. Du Ch. R. Co. 17 Wis. 487, 84 Am. Dec. 758; Summers v. Crescent City R. Co. 34 La. Ann. 139, 44 Am. Rep. 419; Tucker v. Buffalo R. Co. 53 App. Div. 571, 65 N. Y. Supp. 989, Affirmed in 169 N. Y. 589, 62 N. E. 1101.
2. Error is predicated upon the refusal of the court to instruct the jury that, should they find from the evidence that the deceased exposed or extended his arm or head, or any part of his person, beyond the outer part of the car to such an extent that he was struck by the car passing in the opposite direction, and that but for such action on his part the accident would not [271]*271have happened, they should find for the defendant. There was no error on the part of the court in refusing to charge this proposition. In Spencer v. Milwaukee & P. Du Ch. R. Co. 17 Wis. 487, 84 Am. Dec. 758, the court pertinently said: “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 as 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 cars while passing.”
The uncontradicted testimony shows that the space between two of these cars was not more than 3 inches, and it was gross negligence upon the part of the appellant to use cars which almost touched when they passed, and it was doubly negligent for them to run such cars with the panels taken out, with a running rail placed where the passengers would naturally rest their arms. At the very least, it was the duty of the company to see that one of the cars came to a full stop, and that the other passed very slowly, because, as is well known, there is more or less swaying of cars when in motion, and the peril was present whenever two open cars met, and the danger was caused by their very close proximity. As was said by the court in Geitz v. Milwaukee City R. Co. 72 Wis. 307, 39 N. W. 866: “We suppose it is common knowledge that a car being propelled upon a railroad track will be swayed by the inequalities of the track.”
3. This error is based upon the refusal of the court to instruct the jury that if the deceased changed his position after the front of the car had passed him without striking him, and that by such change of position he was struck by the car, the verdict should be for the defendant.
Danger of being hit by a passing car is not such a peril as a passenger on a street car is bound to anticipate, and in the present case if there was the ringing of gongs and the shouting [272]*272that is asserted by some of the witnesses to have occurred before the deceased was struck, it would be quite natural for him to shift his position, although there is no sufficient evidence to warrant such a supposition. A more natural supposition is that if part of the car passed him in safety, that the swaying of the cars brought them closer together and resulted in the relative change of position of the cars, rather than in any change of the position of the deceased. There was no error in the refusal to instruct the jury on this point.
4. This error is based upon the refusal of the court to instruct the jury that if they found the deceased had been in the habit of-passing over the defendant’s road at the place of the accident, that would justify an inference that he had knowledge of the space between the cars. The evidence discloses that these large ears had been in use from six to twelve months, but there is no evidence that would have warranted the jury in finding how frequently he had been a passenger; and even if he had been a daily passenger there would be no inference that he had knowledge of the space between the cars. He might have been on the cars many times without seeing two of these large cars pass at this dangerous point of the line; and even if the cars had passed, he might well have been occupied with other matters, and not noticed how close together the cars were in passing. As well might a passenger, in order to be free from a charge of contributory negligence, be required to examine the trucks, including the wheels and brakes, the motor, the car body, the track, the competency of the motorman, and everything pertaining to the operation of the line. A common carrier of passengers in street cars cannot shift such burdens upon a passenger. It is the duty of such a carrier to construct its railroad and to use such equipment as will not endanger the safety of its passengers. The fallacy of the proposition advanced by this request to charge is so self-evident that authorities are not required in support of our position that the court did not err in refusing to charge as requested.
5. This error is based upon that portion of the charge which states that “the whole question seems to come to the jury to [273]*273■determine whether or not, under the form of car that was used here, with the width of track that was used here, with the style •of open car built as it was, and with this rail in the position it was, there was anything this company ought to have done as .a prudent and reasonable person to prevent the happening of .an accident of this kind.”
We do not think there is any force in the objection raised to this portion of the charge. In this connection it may be said that the charge should be taken as a whole, and when that charge is fair an appellate court should not labor to sustain an objection "based upon a sentence which, taken by itself, may not express in the happiest terms a proposition which is correct. We think a fair construction to be placed upon the clause objected to is that the court instructed the jury that it was for it to determine whether the company could have done anything in reference to the form of the car used and the space between the tracks which would have prevented the happening of the accident. Reference in the paragraph is made to the “open car” and to the position of the rail, and the court was correct in leaving it to the jury to determine whether such a car and such a rail were proper under all the circumstances of the case as proven by the testimony. We would not be warranted in sustaining this objection or predicating error upon this portion of the charge.
6. Error is charged because the court instructed the jury as ■follows:
“But notwithstanding that fact, although the plaintiff’s intestate may have been clearly at fault and negligent in putting "his arm out, or his head, or whatever it was, yet if the defendant did not take such precautions as a prudent and reasonable person ought to take to prevent such an accident, I think the de•fendant would he liable.”
It is claimed that this statement strikes down the entire doctrine of contributory negligence. It is admitted that the court, in giving the seventh instruction asked for by appellant, told the jury that if the plaintiff was guilty of contributory [274]*274negligence he could not recover, although the defendant was. found guilty of negligence.
We think the charge of the court on the question of contributory negligence was eminently fair. We think that there is nothing to which the appellant can fairly take exception in the charge, or in the refusal to charge, upon the subject of contributory negligence. Contributory negligence in this case is. based upon the contention that the deceased’s arm was outside the car. The weight of authorities, as we have before stated, is that this is a question for submission to the jury. Charges much more favorable to a plaintiff' have been made in this line of cases, and sustained by the appellate tribunals. For example, in Tucker v. Buffalo R. Co. 53 App. Div. 571, 65 N. Y. Supp. 989, it appeared that the plaintiff sat by one of the open windows of the car, with his elbow resting upon the window sill, and the evidence tended to show that it was some 3 inches outside the line of the car. As the car passed another car going in an opposite direction on the switch, the two cars came close to each other. The court charged the jury, in effect, that the plaintiff might recover, although he was riding with his elbow 3 inches outside the car, and although the cars themselves did not actually collide. The appellate court held that there was no error in this charge.
Y. The last error is based upon that part of the charge wherein the court said:
“If the plaintiff’s intestate was guilty of negligence, and was in a position of apparent pei’il, and the employees of the defendant company saw that position of apparent peril in time to have prevented the injury, it was their duty, notwithstanding-the negligence of the plaintiff’s intestate, to do all they could to prevent the accident. If they, in that condition of affairs, failed to exercise due and proper care the plaintiff may still recover.
“I want to make clear to you the other proposition I stated. Notwithstanding the plaintiff’s negligence, if the defendant saw that he was in a position of peril by reason of his own negli[275]*275gence, in time to have prevented the accident, and did not do anything that they ought to have done, he could still be allowed to recover, because the direct result of the negligence of the defendant in that case was the cause of the injury. In other words, a man cannot run over another if he sees him in a perilous position, provided he can stop before he does run over him. It is the same way with a railroad company. They could not injure this party if they saw he was there in a perilous position, without undertaking to stop their cars or do something to prevent the accident. If those are the facts, as you find them,, the plaintiff may recover.”
We think that the general proposition laid down in these paragraphs is a correct one, and that the appellant was not harmed by the statements contained therein. In view of the fact that the court left the question of the contributory negligence of the deceased to the jury, and by their verdict it found that the deceased was not guilty of any negligence which contributed to the accident, the charge here objected to amounts to nothing. There was, however, we think, evidence which rendered such instruction proper. The motorman of the approaching car testifies in substance that he saw the deceased, and at least one other passenger, with their arms resting on the rail, and that he warned them to take them in. In view of this it was for the jury to determine under proper instructions whether everything was done to prevent the accident. It was for the jury to determine whether the motorman, seeing the perilous position of the deceased, should not have endeavored to stop his car. We have said that we believe it was negligence on the part of the appellant not to stop one of the cars when two cars were about to pass at the point where the accident occurred. We have carefully considered the entire charge of the court, and have come to the conclusion that it was eminently fair, and that the appellant has no good ground for its insistence that in its instructions to the jury, or in its refusal to give additional instructions, any error was committed.
No error having been committed, it follows that the judg[276]*276meat of tbe court below should be affirmed, with costs, and it is so ordered. Affirmed.
A writ of error to tbe Supreme Court of tbe United States was allowed April 12, 1905.