By the Court,
Cole, J.
The important question in this case is, whether the circuit court erred in refusing to instruct the jury, as a matter of law, that if they should find from the evidence that the plaintiff was sitting in the car with his arm exposed outside, and received the injury complained of by reason of his arm being so exposed outside of the car, then their verdict must be for the defendant. The court had told the jury, in the general charge, that railroad companies were held to extraordinary diligence and care in the transportation of passen[493]*493gers, and were liable for any injuries that might result from a want of such diligence and care, unless the person injured contributed to produce such injury by want of ordinary care upon his part, or by his own negligence and carelessness. The court further instructed the jury that if they found that the injury was produced by the plaintiff having his arm or elbow outside the window, or that his having his arm in that position contributed to produce the injury, then it was for them to say whether the plaintiff, in thus placing his arm outside of the window, was guilty of carelessness.
This was fairly submitting the question to the jury, whether the plaintiff was guilty of negligence in placing his arm in the window in the manner he did, or whether his doing' so contributed to produce the casualty. It was eminently a question of fact, to be determined from all the circumstances and facts of the case, as it appears to us. Eor surely it is a matter of fact, whether a person riding in a railroad car and placing his arm upon the window base, even if it extends slightly outside, does so in a manner hazardous and dangerous under the circumstances, or whether he exercises all proper and reasonable care and attention to his personal safety. It is incumbent upon him, of course, so to conduct himself as not to expose his limbs to collision from obstacles outside. 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 cannot 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 cannot. And [494]*494certainly, when we consider tbe 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 cannot 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. Of course a case might be supposed where carelessness would be clearly apparent from the circumstances. If a passenger should ride with his body half out of the car, or with his arms or feet so protruded that they would inevitably expose him to danger and collision, we should have no hesitation in saying that he was utterly reckless. But there is no proof that such was the conduct or position of the plaintiff. There was evidence that his arm was slightly outside the window when it was struck by the key in the bridge. That key was loose and out of its place, as abundantly appears from all the evidence. And it was for the jury to say, from all [495]*495tbe facts, whether the position of the plaintiff exposed him to collision, or whether he was exercising all the care incumbent upon him when his arm was struck and broken by this key thus out of its place. It was the duty of the jury to decide this question of carelessness, as we think, and not for the court to say, as a matter of law, that if the arm was outside to any degree the plaintiff’s conduct was such as to prevent him from maintaining the action.
The counsel for the company has referred us to a number of authorities to show that this question, whether the plaintiff was guilty of negligence in having his arm outside the window, was a matter of law for the court to decide, and not one of fact for the jury. And he relied very much upon Todd vs. The Old Colony & Fall River R. R. Co., 3 Allen, 18, which in its leading facts is much like the case at bar, and perhaps not in principle distinguishable from it, where the court held, as a matter of law, that a person sustaining an injury by reason of his arm or elbow being out of the window, was guilty of such a want of due care on his own part as would prevent him from maintaining an action. We have examined that case and the authorities referred to in support of this doctrine, as far as we had access to them. And we must say that the rule laid down in the case of Todd is, in our judgment, contrary to the weight of authority, and unsound in principle. Eor, as already observed, it seems to us almost absurd to say, in every case, that a party who exposes his arm in the least degree outside of the car window is wanting in proper care and attention; that this is a presumption of law which is to control the judgment of the court und jury regardless of other facts and circumstances. Better, we think, to leave the whole question to the jury, whether the party exercised due care and attention or exposed himself to collision. It is a pure question of fact, and the jury is the proper tribunal to determine it.
We do not deny the right of a court to nonsuit a plaintiff when he utterly fails to make out a case. Nor do we say the [496]*496court may not grant a new trial in a case where the verdict is clearly unsupported by the evidence. But the principles of law governing such cases are not applicable here. For it is far from being clear that the plaintiff was guilty of any negligence in putting his arm in the window in the manner he did, and for the court to sa3r that he was thus guilty is usurping the province of the jury.
It is claimed that the court erred in allowing the testimony of Lacey and Allen in reference to the measurement of the cars.
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By the Court,
Cole, J.
The important question in this case is, whether the circuit court erred in refusing to instruct the jury, as a matter of law, that if they should find from the evidence that the plaintiff was sitting in the car with his arm exposed outside, and received the injury complained of by reason of his arm being so exposed outside of the car, then their verdict must be for the defendant. The court had told the jury, in the general charge, that railroad companies were held to extraordinary diligence and care in the transportation of passen[493]*493gers, and were liable for any injuries that might result from a want of such diligence and care, unless the person injured contributed to produce such injury by want of ordinary care upon his part, or by his own negligence and carelessness. The court further instructed the jury that if they found that the injury was produced by the plaintiff having his arm or elbow outside the window, or that his having his arm in that position contributed to produce the injury, then it was for them to say whether the plaintiff, in thus placing his arm outside of the window, was guilty of carelessness.
This was fairly submitting the question to the jury, whether the plaintiff was guilty of negligence in placing his arm in the window in the manner he did, or whether his doing' so contributed to produce the casualty. It was eminently a question of fact, to be determined from all the circumstances and facts of the case, as it appears to us. Eor surely it is a matter of fact, whether a person riding in a railroad car and placing his arm upon the window base, even if it extends slightly outside, does so in a manner hazardous and dangerous under the circumstances, or whether he exercises all proper and reasonable care and attention to his personal safety. It is incumbent upon him, of course, so to conduct himself as not to expose his limbs to collision from obstacles outside. 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 cannot 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 cannot. And [494]*494certainly, when we consider tbe 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 cannot 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. Of course a case might be supposed where carelessness would be clearly apparent from the circumstances. If a passenger should ride with his body half out of the car, or with his arms or feet so protruded that they would inevitably expose him to danger and collision, we should have no hesitation in saying that he was utterly reckless. But there is no proof that such was the conduct or position of the plaintiff. There was evidence that his arm was slightly outside the window when it was struck by the key in the bridge. That key was loose and out of its place, as abundantly appears from all the evidence. And it was for the jury to say, from all [495]*495tbe facts, whether the position of the plaintiff exposed him to collision, or whether he was exercising all the care incumbent upon him when his arm was struck and broken by this key thus out of its place. It was the duty of the jury to decide this question of carelessness, as we think, and not for the court to say, as a matter of law, that if the arm was outside to any degree the plaintiff’s conduct was such as to prevent him from maintaining the action.
The counsel for the company has referred us to a number of authorities to show that this question, whether the plaintiff was guilty of negligence in having his arm outside the window, was a matter of law for the court to decide, and not one of fact for the jury. And he relied very much upon Todd vs. The Old Colony & Fall River R. R. Co., 3 Allen, 18, which in its leading facts is much like the case at bar, and perhaps not in principle distinguishable from it, where the court held, as a matter of law, that a person sustaining an injury by reason of his arm or elbow being out of the window, was guilty of such a want of due care on his own part as would prevent him from maintaining an action. We have examined that case and the authorities referred to in support of this doctrine, as far as we had access to them. And we must say that the rule laid down in the case of Todd is, in our judgment, contrary to the weight of authority, and unsound in principle. Eor, as already observed, it seems to us almost absurd to say, in every case, that a party who exposes his arm in the least degree outside of the car window is wanting in proper care and attention; that this is a presumption of law which is to control the judgment of the court und jury regardless of other facts and circumstances. Better, we think, to leave the whole question to the jury, whether the party exercised due care and attention or exposed himself to collision. It is a pure question of fact, and the jury is the proper tribunal to determine it.
We do not deny the right of a court to nonsuit a plaintiff when he utterly fails to make out a case. Nor do we say the [496]*496court may not grant a new trial in a case where the verdict is clearly unsupported by the evidence. But the principles of law governing such cases are not applicable here. For it is far from being clear that the plaintiff was guilty of any negligence in putting his arm in the window in the manner he did, and for the court to sa3r that he was thus guilty is usurping the province of the jury.
It is claimed that the court erred in allowing the testimony of Lacey and Allen in reference to the measurement of the cars. The object of that testimony evidently was, to show that the key was on a level with the bottom of an open window? and, by projecting across the space between the bridge and car, struck the plaintiff’s arm and broke it. It was probably offered as a foundation for the conclusion that it was this dangerous object which caused the injury. In this view, we are by no means clear that it was not competent testimony, taken in connection with other facts proven on the trial. But however this may be, it was manifestly harmless, in view of the fact that two of the company’s witnesses swore that they saw this piece of timber strike the plaintiff’s arm. All room for doubt as to what caused the injury was removed by this evidence. Again, it is urged that the court permitted the plaintiff to contradict the witness Russell as to the, substance of a conversation he had with Allen, without calling the attention of the witness to the time and place of the conversation. But as we understand the bill of exceptions, this objection is not founded in fact. The witness Russell says upon this point, in his cross-examination, that he recollects the time Mr. Allen first spoke to him about the accident; that it was last fall near the depot, and at his house ; that he did remember telling Allen at-that time that he knew nothing about the accident. We do not pretend to give the exact words of the witness, but the substance of his testimony. Allen was asked whether he had a conversation with Russell near the depot or at the latter’s house, about October, as to what Russell knew in respect to [497]*497the accident. Allen then -gave the answer set forth in the record. It appears to us that a foundation was laid for this contradiction of Eussell, by calling his attention to the specific conversation which was the subject of inquiry. Whether in fact he was contradicted by the answer given, is another matter.
The result at which we have arrived upon this record is, that the judgment must be affirmed.
Judgment affirmed.