This is an action to recover damages for personal injuries sustained by plaintiff while traveling as a passenger on one of defendant’s trains.

Appellant contends that the judgment and order should be reversed, because plaintiff failed to show negligence in the management of the train, or any defect in the defendant’s railroad track.

It is doubtless true, as claimed by appellant, that in cases of this character the burden of proof is upon the plaintiff to establish negligence on the part of the defendant, and that the mere fact that a passenger was injured while on his journey is not sufficient to raise a presumption of negligence on the part of the carrier. But in this case not only is the injury admitted, but the derailment and overturning of the car are undisputed facts, and there is evidence tending to show that at the time the accident occurred the train was running down a steep incline leading to the bed of a river, on a new and curved track, at an unusual and dangerous speed. This showing was sufficient to throw upon the defendant the burden of proving that the injury was not caused by any want of care on its part. (Boyce v. Cal. Stage Co., 25 Cal. 460 ; Lawrence v. Green, 70 Cal. 417 ; 59 Am. Rep. 428 ; Treadwell v. Whittier, 80 Cal. 574 ; 13 Am. St. Rep. 175 ; Breen v. N. Y. C. R. R. Co., 109 N. Y. 297 .)

*73 At the time the accident occurred the plaintiff was standing on the platform of the smoking-car, and it is claimed that he cannot recover for the injury sustained by him, and that defendant is relieved from responsibility therefor by the provisions of section 484 of the Civil Code, which reads as follows: “Every railroad corporation must have printed and conspicuously posted on the inside of its passenger-cars its rules and regulations regarding fare and conduct of its passengers; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in person by any officer of the train, the corporation is not reponsible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section.” Plaintiff admitted at the trial that defendant had proper notices, as required by this section, posted in all of its cars, and that he had full knowledge of their contents before the accident. He testified that he had gone out upon the platform immediately before the accident, in consequence of the fear that some disaster would occur; that his attention was directed to the speed of the train as soon as it passed over the top of the grade and began to descend; that the great and unusual speed at which the train was going, taken in connection with the fact that the road was new and temporary, led him to believe that an accident would occur, and that he went out upon the platform intending to jump therefrom to the sand on the inside of the curve, where he believed he would escape with less injury than if he remained in the°car, and that he had no sooner reached the platform than the car was overturned and he was thrown upon the ground; that he had been for a long time in the employ of Wells, Fargo, & Co., had acquired a knowledge and skill as to the movement of trains, could distinguish between the degrees of speed by the motion *74 of the train, and that the train ran faster on the day of the accident than ever before.

The evidence of the defendant tends to show that the plaintiff had been upon the platform several minutes before the accident occurred, but if the jury believed the testimony of the plaintiff, it was for them to say whether the circumstances were such as would lead a person of ordinary prudence to act as the plaintiff did. The inquiry is, Where there has been an unsuccessful attempt to escape danger in an accident, was the attempt which was made an unreasonable or rash act? or was it one which a person of ordinary care and prudence might do under the circumstances? The answer to this inquiry cannot be made to depend upon the result

In Buel v. N. Y. C. R. R. Co., 31 N. Y. 319 , 88 Am. Dec. 271 , the court said: “The statute exempts a railroad company from liability to a passenger who shall be injured while on the platform of a car, etc., in violation *75 of the printed regulations of the company, posted up at the time, in a conspicuous place, inside of its passenger-cars then in the train; provided the company, at the time, furnished room inside its passenger-cars sufficient for the proper accommodation of the passengers. (Laws of 1850, c. 140, sec. 46.) There was in this case a printed regulation pursuant to this statute posted in a conspicuous place inside the car, prohibiting passengers from standing or riding on the platform of any car. But neither the statute nor the regulation has any application to a case like the present one. . . The statute

was intended to prevent the imprudent act of standing or riding on the platform, but not to absolve railroad companies from responsibility for every injury which might happen at that place when a passenger is passing over it, while justifiably entering or leaving the cars.” In that case it was held that although the plaintiff was injured while attempting to escape from the car in a collision, and although the passengers in the same car with him, who kept their seats, escaped uninjured, he could not be held guilty of contributory negligence; that he acted with ordinary care and prudence.

We have carefully examined the instructions of the court to the jury, and find no error in any of them.

The court erred in sustaining plaintiff’s objections to the questions asked by defendant as to the conduct of the passengers who remained in the car, and whether any of them was injured. Evidence of the action of other passengers in such cases is competent as a part of the res gestx, and to show what they, being in the same dangerous situation, deemed prudent conduct. They all had an equal interest in protecting themselves, and will be presumed to have done what appeared to them to involve the least hazard..

This error was cured, however, by other testimony — which appears nit to be disputed — showing that there were only three passengers in the car besides plaintiff., *76 and that they all remained in their seats until the car was overturned, and all escaped unhurt.

There is another error assigned, based upon the refusal of the court to allow defendant to ask how often plaintiff had traveled over the road prior to the accident; but as evidence on the topic went in afterwards without objection, no prejudice can be predicated on the ruling complained of.

There was one error which we think was prejudicial, and which entitles the appellant to a new trial. The plaintiff testified that the car left the track immediately after he reached the platform; that “just as I [he] had stepped out of the car door the crash came.” It was claimed by the defendant, and it attempted to show by evidence, that plaintiff was improperly on the platform; that he was not there through fear of an accident; that he had been standing on the platform in violation of its regulations several minutes before the accident occurred, and was consequently guilty of contributory negligence. The conductor testified that he left the smoking-car two' or three minutes before the accident occurred, and that plaintiff went out with him; that the train was not going as fast then as it had on former occasions at the same point, and while plaintiff was on board; that he gave the brakeman orders to -let off the brakes, walked back into the smoking-car and took his seat, while the plaintiff remained standing on the platform. The defendant then called S. W. Smith, who was one of the three passengers in the car at the time of the accident, and he was asked to state whether Mr. Clark, the conductor, returned into the smoking-car after he and plaintiff left it, and before the accident occurred. Plaintiff objected to the question, on the ground that it was immaterial; the court sustained the objection, and defendant excepted.

The question whether plaintiff went upon the platform under the circumstances narrated by him was a most important one; in fact the main question in the case is, *77 whether he acted as a prudent man would under the circumstances. In determining that question, the length of time he remained upon the platform, and the conduct of others on the train, including the officers of the train, is material, competent, and important. The testimony of the conductor, if true, would tend, not only to impeach the testimony of the plaintiff as to the length of time he stood on the platform, but directly to prove that there was no apparent reason for alarm at the time the accident occurred. To enable the jury to decide whether the conductor’s account of the circumstances, or that of the plaintiff, was correct, the testimony of Smith, a disinterested witness, might have been important. It certainly was material and competent, and should have been admitted.

Judgment and order reversed, and cause remanded for a new trial.

McFarland, J., Fox, J., and Beatty, C. J., concurred.

Works, J., concurred in the judgment.

Sharpstein, J., dissented.