WILLSON, C. J.
(after stating the facts as above). The contention made on the former appeal, that the court should have per
emptorily instructed the jury to find in appellant’s favor is renewed on this appeal. It is insisted now, as it was then, that there was no testimony on which to base a finding that appellant was guilty of negligence, and, if there was, that it appeared as a matter of law that the risk appellee incurred in being in the vestibule of the car was one he should be held to have assumed; and, further, that he was himself guilty of negligence. In support of its view of the case appellant insists that, having provided 'its cars with vestibules when it need not have done so, it owed to appellee no duty to keep the outside doors thereof closed while the train was moving, unless it was in the attitude of having induced him, in use he made- of the vestibule, to rely upon its doing so. We think appellant assumed that attitude when it provided the car with vestibules. The fact that the vestibules formed a part of the car was, we think, using the language of the court in Bronson v. Oakes, 76 Fed. 740, 22 C. C. A. 526, “an invitation for him to use it as 'his convenience or necessity might require.” In the case cited it appeared that the plaintiff in going from one car to another in the nighttime mistook on open vestibule door for the door of the car he was attempting to go into, and fell through it. In reversing a judgment for the defendant, entered on demurrers to the plaintiff’s petition, the court said:
“The defendants were under no legal obligation to provide vestibuled trains for their passengers, but, having done so, it was their duty to maintain them in a reasonably safe condition. Railway Co. v. Glover [92 Ga. 132] 18 S. E. 406, 414. The purpose of the vestibuled cars is to add to the comfort, convenience, and safety of passengers, more particularly while passing from one car to another. The presence of such an appliance oñ a train is a proclamation by the company to the passenger that it has provided him a safe means of passing from one car to another, and an invitation for him -to use it as his convenience or necessity may require. Whether, having provided vestibuled cars for their passenger trains, it was negligence in the defendants to leave the vestibule connection between two cars without light, and the outside door of the vestibule open without a guard rail or other protection while the train was running rapidly on a dark night, is a question of fact for the jury to determine. And if, upon the facts set out in the complaint, they should find that it was negligence, no court could disturb their finding.”
In the Georgia case (Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406), referred to in the excerpt from the opinion in the Bronson Case, negligence of the defendant (a street car company) was predicated, in part, on its failure to have the platform gate of its car closed. The court said:
“There may be no negligence whatever in failing to. have gates for the very highest order of equipment may be dispensed with, provided the equipment is sufficient to come up to the standard of extraordinary diligence. This standard may be reached short of the very best or the superlative of the attainable. But, when a company has provided gates, due diligence might require it to use them, and failure to use them might be negligence in the given instance. AVhether it would be dr not is a question of fact for the jury. * * * Extraordinary diligence may require the carrier to use what he has though it would not require him to have as much as he has provided.”
We do not understand either of the three cases cited by appellant as holding to the contrary of those mentioned above.
In Sansom v. Railway Co., 111 Fed. 887, 50 C. C. A. 53, plaintiff’s intestate had taken passage at an intermediate point on a train advertised by the defendant as “a solid ves-tibuled train from Washington to Memphis.” The train in fact consisted of three vesti-buled cars and one without vestibules, for use by other than through passengers. In passing from one of the vestibuled cars to the one not so equipped, the plaintiff’s intestate fell to the ground and was killed. Affirming a judgment for the defendant on a verdict by the trial court, the appellate court, after stating that it knew of no statute or rule of law requiring the defendant to use vestibuled cars, said:
“The through cai-s were properly vestibuled. There was no defect in their construction or management. The fault, if any, was in putting an ordinary car, for the accommodation of local traffic, into the vestibuled train. For such purposes an ordinary car, without vestibules, would be more convenient, if not so safe as vestibuled cars. In the absence of any rule of law requiring all cars to be vestibuled, the negligence in this respect must consist in having, by the advertisement, held out to prospective passengers the assurance that this was a ‘solid vestibuled train,’ whereas it was broken, without notice, by the introduction of the car for local traffic, thereby inducing the passenger to act upon the supposition that he was upon a solid train, and be less guarded in passing from car to car. Assuming, without deciding, that the deceased had a right to rely and did rely upon the statement in the folder, it must be remembered that this car was upon a train to be run in daylight. The want of a vestibule was plainly visible. This is not an action upon contract. There is no claim that the defendant agreed to carry the passenger upon a train of vestibuled cars. Was the railroad guilty of a want of care likely to produce injury in thus introducing a car where it must have been evident to those having occasion to use it that it was not provided with .a vestibule? We think this question must be answered in the negative, and that there was no failure to observe that degree of care, precaution, and vigilance justly demanded by the circumstances, the absence of which constitutes negligence.”
In the course of the opinion the court further said, referring to Bronson v. Oakes, supra:
“It is true that it has been held, and we think properly so, that, where a company has undertaken to provide a vestibuled train, it is negligence to permit the appliances to be out of order, or to leave the doors carelessly open, so that passengers who rely and have a right to rely upon the safety and proper management of the train are injured thereby.”
In Crandall v. Railway Co., 96 Minn. 434, 105 N. W. 185, 2 L. R. A. (N. S.) 645, 113 Am. St. Rep. 653, 6 Ann. Cas. 973, a boy seven years of age, riding on the rear platform of a sleeping car, with vestibules, fell through an outside door of one of the vestibules, left open while the car was moving. It appeared that the boy was accompanied by his aunt,
and that she had permitted him to ride on the platform only after she had been assured by the train porter that it was safe, “as everything was securely fastened.” In affirming a judgment for the plaintiff, the court said:
“The defendant was not bound to have the car vestibuled; but, having done so, it could not by acts and words lead its passengers to believe that the doors of the vestibule would.be kept closed between stations, and then negligently leave them open, without incurring liability to passengers injured thereby.”
In Clanton v. Railway Co., 165 Ala.
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WILLSON, C. J.
(after stating the facts as above). The contention made on the former appeal, that the court should have per
emptorily instructed the jury to find in appellant’s favor is renewed on this appeal. It is insisted now, as it was then, that there was no testimony on which to base a finding that appellant was guilty of negligence, and, if there was, that it appeared as a matter of law that the risk appellee incurred in being in the vestibule of the car was one he should be held to have assumed; and, further, that he was himself guilty of negligence. In support of its view of the case appellant insists that, having provided 'its cars with vestibules when it need not have done so, it owed to appellee no duty to keep the outside doors thereof closed while the train was moving, unless it was in the attitude of having induced him, in use he made- of the vestibule, to rely upon its doing so. We think appellant assumed that attitude when it provided the car with vestibules. The fact that the vestibules formed a part of the car was, we think, using the language of the court in Bronson v. Oakes, 76 Fed. 740, 22 C. C. A. 526, “an invitation for him to use it as 'his convenience or necessity might require.” In the case cited it appeared that the plaintiff in going from one car to another in the nighttime mistook on open vestibule door for the door of the car he was attempting to go into, and fell through it. In reversing a judgment for the defendant, entered on demurrers to the plaintiff’s petition, the court said:
“The defendants were under no legal obligation to provide vestibuled trains for their passengers, but, having done so, it was their duty to maintain them in a reasonably safe condition. Railway Co. v. Glover [92 Ga. 132] 18 S. E. 406, 414. The purpose of the vestibuled cars is to add to the comfort, convenience, and safety of passengers, more particularly while passing from one car to another. The presence of such an appliance oñ a train is a proclamation by the company to the passenger that it has provided him a safe means of passing from one car to another, and an invitation for him -to use it as his convenience or necessity may require. Whether, having provided vestibuled cars for their passenger trains, it was negligence in the defendants to leave the vestibule connection between two cars without light, and the outside door of the vestibule open without a guard rail or other protection while the train was running rapidly on a dark night, is a question of fact for the jury to determine. And if, upon the facts set out in the complaint, they should find that it was negligence, no court could disturb their finding.”
In the Georgia case (Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406), referred to in the excerpt from the opinion in the Bronson Case, negligence of the defendant (a street car company) was predicated, in part, on its failure to have the platform gate of its car closed. The court said:
“There may be no negligence whatever in failing to. have gates for the very highest order of equipment may be dispensed with, provided the equipment is sufficient to come up to the standard of extraordinary diligence. This standard may be reached short of the very best or the superlative of the attainable. But, when a company has provided gates, due diligence might require it to use them, and failure to use them might be negligence in the given instance. AVhether it would be dr not is a question of fact for the jury. * * * Extraordinary diligence may require the carrier to use what he has though it would not require him to have as much as he has provided.”
We do not understand either of the three cases cited by appellant as holding to the contrary of those mentioned above.
In Sansom v. Railway Co., 111 Fed. 887, 50 C. C. A. 53, plaintiff’s intestate had taken passage at an intermediate point on a train advertised by the defendant as “a solid ves-tibuled train from Washington to Memphis.” The train in fact consisted of three vesti-buled cars and one without vestibules, for use by other than through passengers. In passing from one of the vestibuled cars to the one not so equipped, the plaintiff’s intestate fell to the ground and was killed. Affirming a judgment for the defendant on a verdict by the trial court, the appellate court, after stating that it knew of no statute or rule of law requiring the defendant to use vestibuled cars, said:
“The through cai-s were properly vestibuled. There was no defect in their construction or management. The fault, if any, was in putting an ordinary car, for the accommodation of local traffic, into the vestibuled train. For such purposes an ordinary car, without vestibules, would be more convenient, if not so safe as vestibuled cars. In the absence of any rule of law requiring all cars to be vestibuled, the negligence in this respect must consist in having, by the advertisement, held out to prospective passengers the assurance that this was a ‘solid vestibuled train,’ whereas it was broken, without notice, by the introduction of the car for local traffic, thereby inducing the passenger to act upon the supposition that he was upon a solid train, and be less guarded in passing from car to car. Assuming, without deciding, that the deceased had a right to rely and did rely upon the statement in the folder, it must be remembered that this car was upon a train to be run in daylight. The want of a vestibule was plainly visible. This is not an action upon contract. There is no claim that the defendant agreed to carry the passenger upon a train of vestibuled cars. Was the railroad guilty of a want of care likely to produce injury in thus introducing a car where it must have been evident to those having occasion to use it that it was not provided with .a vestibule? We think this question must be answered in the negative, and that there was no failure to observe that degree of care, precaution, and vigilance justly demanded by the circumstances, the absence of which constitutes negligence.”
In the course of the opinion the court further said, referring to Bronson v. Oakes, supra:
“It is true that it has been held, and we think properly so, that, where a company has undertaken to provide a vestibuled train, it is negligence to permit the appliances to be out of order, or to leave the doors carelessly open, so that passengers who rely and have a right to rely upon the safety and proper management of the train are injured thereby.”
In Crandall v. Railway Co., 96 Minn. 434, 105 N. W. 185, 2 L. R. A. (N. S.) 645, 113 Am. St. Rep. 653, 6 Ann. Cas. 973, a boy seven years of age, riding on the rear platform of a sleeping car, with vestibules, fell through an outside door of one of the vestibules, left open while the car was moving. It appeared that the boy was accompanied by his aunt,
and that she had permitted him to ride on the platform only after she had been assured by the train porter that it was safe, “as everything was securely fastened.” In affirming a judgment for the plaintiff, the court said:
“The defendant was not bound to have the car vestibuled; but, having done so, it could not by acts and words lead its passengers to believe that the doors of the vestibule would.be kept closed between stations, and then negligently leave them open, without incurring liability to passengers injured thereby.”
In Clanton v. Railway Co., 165 Ala. 485, 51 South. 616, 27 L. R. A. (N. S.) 253, the other of the three cases relied upon by appellant, it appeared that the plaintiff fell from the ear platform at a time when the train was at a station and the door to the vestibule, through which she fell, was open so that persons having occasion to do so might pass into and out of the car.
We think the other grounds relied upon as supporting the contention made that the trial court erred when he refused to instruct the jury to find in appellant’s favor also should be overruled. We do not understand that the doctrine of “assumed risk,” as distinguished from contributory negligence, applies where a passenger is seeking a recovery of damages for personal injuries due to negligence of a carrier (Railway Co. v. Carter, 71 S. W. 73); and we do not think it appeared from the testimony as a matter of law that appellee was guilty of contributory negligence.
The court instructed the jury as follows:
“If you shall find that an ordinarily prudent and cautious person, under the same or similar circumstances, would not have gone upon the platform as plaintiff did, he cannot recover.
“If you believe that had plaintiff exercised that degree of care and caution for his own safety that would have been exercised by an ordinarily prudent person under similar circum-slanees he would not have fallen from the train, he cannot recover.”
If we thought, and wo do not, that the instructions just set out wore insufficient as guides to the jury in determining the issue as to negligence or not on the part of ap-pellee, we wonld be of opinion, nevertheless, that the court did not err as complained of by appellant when he refused its special charge No. 20 to find for it if they believed, other conditions concurring, that appellee—
“knew or by the exercise of ordinary care and caution could have known that the trap and door of the vestibule was open at the time he went upon the platform or during the time he remained upon the platform; * *
*
and if they further believed that he was guilty of the slightest degree of a want of that ordinary care that an ordinarily prudent person would have exercised under similar circumstances to have avoided being injured by reason of the trap and door not being closed, and that he bad not been so guilty of such slight degree of that want of ordinary care that an ordinarily prudent person would have exercised under similar circumstances ho would not have been injured.”
That appellee was chargeable with knowledge that the door was open, if by the exercise of care he
could
have known it, we think was not an accurate statement of the law. As the door
was
open, unquestionably he
could
have known it was, had he used care in inspecting the vestibule, to determine its condition, before he went to it, or while in it. Whether an ordinarily prudent person under the circumstances
toould
have made such an inspection, or, without making it,
would
have known the door was open, was the question. Bookrum v. Railway Co., 57 S. W. 919. And we are inclined to think the court also was justified in refusing the requested charge on the ground that the use in it of the language “slightest degree of a want” of ordinary care was calculated to mislead the jury. While the use of the qualifying words would not have authorized the jury to include that conduct on appellee’s part not amounting to a want of ordinary care would render him guilty of negligence, they were confusing and might have led to a misunderstanding of the instruction.
The refused special charge No. 19 was subject to the objection first suggested above to the refused special charge No. 20, and on that ground, it is believed, it was not error to refuse to give it.
The judgment is affirmed.