Instruction No. 2, given for defendant, leaves out of view tbe fact that tbe conductor tangled his legs up with those of plaintiff when be boarded the car and it is erroneous for tbe further reason that the jury would have been warranted in finding tbe conductor guilty of negligence for tbe circumstance that in getting on tbe car be both struck tbe plaintiff and so interfered with bis footing on tbe steps as to throw him to the ground. The plaintiff’s position on tbe steps of tbe rear platform while tbe car was moving rapidly was perilous. His position was seen by tbe conductor and it was negligence in him to increase tbe plaintiff’s peril by coming in contact with him as be mounted tbe steps'. His duty was to avoid contact with tbe plaintiff and if be could not mount tbe steps without colliding with plaintiff, then be should have remained off tbe ear or boarded it at some other place of ingress.

The sixth instruction for defendant is predicated upon facts (therein cited) of which there is not a ray of evidence to be found in tbe record; nor was it authorized by the plea of contributory negligence alleged in the answer.

Plaintiff testified, and in this be is corroborated by bis two friends, that be was on tbe steps in the act of •getting off on tbe south side of tbe Wabash tracks, but was prevented from doing so by tbe car starting up suddenly and running rapidly and there is no evidence to the contrary. It was error, therefore, to instruct tbe jury that if they found from tbe evidence that plaintiff voluntarily took a position on tbe lower step of tbe platform of tbe car, while it was south of tbe. Wabash railroad tracks, not for tire purpose of getting off south of *224said tracts, bat merely for Ms own convenience, in getting oft at some otter point, etc.

There was no error in sustaining the motion for new trial.

The judgment is affirmed.