
    The Ashtabula Rapid Transit Co. v. Holmes.
    
      Action for personal injury — Alleged negligence of street railway —Passenger alighting from car — While latter in motion— Question of negligence of conductor or passenger — Charge to-jury — Duty of carrier of passengers.
    
    1. If a street car comes to a full stop for any purpose and a passenger is in the act of alighting, it is negligence for the conductor to start the car before such passenger has had a. reasonable opportunity to get off safely.
    2. But if the car does not stop, merely slacking speed sufficiently to permit a passenger to get on', the conductor, in the absence of notice of a passenger’s intention to alight, is not. bound to know that any passenger T. Ill attempt to get off, or is in the act of getting off, while the car is in motion.
    3. Where there is a conflict of evidence as to whether the car-stopped, or whether it only slowed up enough to allow a man to get on, and also as to whether the conductor had notice-of the plaintiff’s intention to alight, it is error to charge the-jury as follows: “If you find from the evidence in this case, that the car stopped or slacked up, for the purpose, sufficiently to let a man onto the same, and at the same time the plaintiff attempted to alight, then we say to you that it became and was the duty of the conductor of the car, before causing or permitting said car to go ahead, to use the highest degree of care consistent with the proper running of said car, to see and ascertain what, if any, other person or persons, might be getting on or off-the car at the time, other than, said man.”
    (Decided November 18, 1902.)
    
      Error to the Circuit Court of Ashtabula county.
    On July 11, 1898, the plaintiff in error owned and operated á street railway in the city of Ashtabula. On that day the defendant in error took passage on one of two attached cars. The car she was on was a trailer. She claims, and offered testimony tending to show, that she notified the conductor where she desired to alight, when she boarded the car, that as the car neared the point where she desired to alight she gave the usual sign for stopping to the conductor, who was then in.the center of the car and facing her; that thereupon the car was stopped, at which time a man got on the car, and that while she was getting off, the conductor, without giving reasonable time for her to alight, started the car and she was violently thrown to the ground and injured. It was claimed by the plaintiff- in error, and it offered evidence tending to prove, that the defendant in error gave no signal or any other notice to the conductor, or anybody else, that she wished to get off, that the car did not stop, that it slacked speed so as to enable a man to get on, and that when so slacking speed the defendant in error suddenly arose from her seat, stepped off and was injured, without the fault of the plaintiff in error. The court, at the request of the plaintiff, defendant in error here, among other things, instructed the jury as follows:
    “If you find from the evidence in this case, that the car stopped or slacked up, for the purpose, sufficiently to let a man on to the same, and at the same time the plaintiff attempted to alight, then we say to you that it became and was the duty of the conductor of the car, before causing or permitting said car to go ahead, to use the highest degree of care consistent'with the proper running of said car, to see and ascertain what, if any, other person or persons might be getting on or off the car at the time other than said man.”
    A verdict was returned for the plaintiff, and after a motion for new trial was overruled a judgment was rendered on the verdict, which judgment was affirmed by the circuit court, one judge dissenting. The above instruction to the jury is assigned for error.
    
      Messrs. Theodore Hall & Son, for plaintiff in error.
    
      Mr. R. W. Calvin and Messrs. Hoyt & Munsell, for defendant in error.
   Davis, J.

The evidence in this case is conflicting upon the point whether the car merely slowed up sufficiently to allow a man to get on, or whether it actually stopped for that purpose. There is also conflict as to whether or not the conductor had notice of the plaintiff’s intention to get off, and whether the plaintiff attempted to get off while the car was moving. If tbe car had come to a full stop for any purpose, and any passenger was in the act of alighting, it would be negligence for the conductor to start the car before such passenger had a reasonable opportunity to get off safely. If the car did not stop, but only slacked speed for the purpose of letting a man get on, the conductor was not bound to “see and ascertain” whether any person might be getting off while the car was in motion. In the absence of notice of a passenger’s desire to alight at that point, the conductor might well presume that persons on the car would not attempt to get off from a moving car, and where in such case a passenger is injured in such attempt it is for the jury to find whether the injured person exercised ordinary care and prudence in attempting to alight from a moving car without giving notice to. the conductor of a desire to get off at a given point. The plaintiff’s request to charge the jury was given without qualification. It ignores the obligation of the plaintiff to exercise ordinary care under the circumstances, and makes the case turn entirely upon the assumed negligence of the conductor in'failing to use the highest diligence “to see and ascertain” that the plaintiff was about to get off when the car had not stopped, although the plaintiff may not have signified a desire to alight. This is stating the rule of vigilance on the part of the carrier altogether too broadly. The law exacts of carriers of passengers a high degree of care for the safety of passengers, according to the circumstances, and this duty ordinarily continues until the passenger is discharged; but it is not required that the carrier shall keep a lookout to prevent passengers from jumping off from running trains, nor that it shall, at its peril, “see and ascertain” that a passenger is about to leave a moving car, without having given any notice, express or implied, of an intention to do so. For these reasons the judgments of the circuit court and the court of common pleas are

Reversed.

Btjrket, C. J., Spear, Shauck, Price and Crew, JJ., concur.  