1. The award offered by the defendants constitutes no bar to the present action. It settles nothing conclu sively between the parties. It is still open to revision by the court to which it was returned, and may be set aside or adjudged void for any good cause. It can have no greater effect than a verdict of a jury It operates neither as a satisfaction nor as a judgment. Assuming, without deciding, that a judgment for a
2. The instruction which the defendants asked concerning the degree of care and diligence which they were bound to exercise towards the plaintiff, was rightly refused. If it be true that in certain cases a distinction is to be made as to the relative duty of carriers of passengers towards those who pay for their transportation and those who are carried gratuitously, it does not appear that the facts proved at the trial of this case rendered it material to call the attention of the jury to it. The defendants
3. The only error in the instructions of the court related to that part of the case which involved an inquiry into the position of the plaintiff’s arm at the time of the accident. If he was then riding in the car with his elbow or. arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care, which would prevent him from maintaining his action. Looking at the mode in which railroads are constructed, with posts and barriers which are placed very near to the track on which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure. of the body or limbs to outward objects in passing, we can see no ground on which it can be contended that a person travelling on a railroad is exercising reasonable care in placing his arm in such a position that it protrudes from a window and may come in contact with external obstructions. Certainly, if it is a want of due care to attempt to leave a car when the train is in motion, although going at a slow rate of speed, as has been heretofore determined by this court, it is no less a want of proper care to ride in a car with an arm or leg exposed to collision against passing trains or the necessary structúres on the sides of the track. Nor was it the province of the jury to determine as a matter of fact, whether the plaintiff used due and reason able care, if it was proved that his arm or a portion of it was outside of the window at the time of the 'accident. If there was no dispute or controversy about this fact, and the position of his arm was the cause of or contributed to the accident, the plaintiff failed to prove an essential element to the maintenance
New trial granted.