
    NEGLIGENCE — STREET RAILWAYS.
    [Stark (5th) Court of Appeals,
    February Term, 1917.]
    Powell, Houck and Shields, JJ.
    Northern Ohio Trac. & Light Co. v. Margaret Schrock.
    1.- Proof of Premature Starting of Interurban Car While Passenger Alights at Regular Stopping Place Justifies Verdict for Injuries.
    A conductor of an interurban car discharging passengers at regular stopping places being hound to observe that passengers alighting therefrom are safely discharged before starting the car in motion again, a verdict in favor of a passenger injured by the alleged premature starting of an interurban car while she was in the act of alighting at a regular stopping place will not be set aside on error where it appears from the record that she had twice notified the conductor of her place of destination, that the conductor called the stop in question and stopped the car and that the car started again while she was descending the rear steps thereof, especially since the record fails to show that the conductor and motorman exercised such degree of care toward the passenger at the time she started to leave and alight from the car as the rule above required.
    2. Special Instruction as to Passenger’s Duty in Alighting from Interurban Car at Regular Stopping Place Cures Defect in Summary of General Charge.
    ■A special instruction that a passenger on an interurban car, attempting to alight therefrom at a regular stopping place, “was under legal obligation to use ordinary care to preserve herself from bodily harm and injury * * * while alighting therefrom,” and if she was negligent in the performance of this duty and such negligence either directly and proximately caused her .fall or in conjunction with the traction company’s negligence, helped or contributed to cause her injuries she is not entitled to recover, covers any defect in the failure of the summary in. the general charge, specifically to call attention to her duty in alighting from the ear.
    3. Verdict of Jury not Reversed as Against Weight of Evidence by Number of Witnesses Testifying Adversely in the Case.
    A verdict in an action for negligence in prematurely starting an in- ' terurban car,, while a passenger is attempting to alight therefrom, will not be set aside by. a reviewing court if the plaintiff appears to have given a natural and reasonable narration of the acts causing the injury, it is the province of the jury to weigh the evidence and determine the credibility of the witnesses, appearing at the trial, and they are not controlled by the number of witnesses testifying to the fact in issue.
    
      ERROR.
    
      WeUy & Burt, for plaintiff in error.
    
      Webber & Turner, for defendant in error.
   SHIELDS, J.

This action was brought in the court of common pleas by Margaret Schrock to recover damages from the Northern Ohio Traction & Light Co. for injuries claimed to have been sustained by her on December 27, 1915, through the alleged carelessness and negligence of said company in the operation of one of its local intcrurban passenger cars on which she had taken passage in the city of Canton at the public square in said city to ride and to be discharged from said car at what is known as Wendell Place in said city, a regular stopping place, and of which she notified the conductor at the time of boarding said ear, and again notified him before said car reached said Wendell Place, in this: that as she was in the act of alighting from said ear at said Wendell Place after said ear had stopped, and while exercising due care, said company through its agents’ and servants’ carelessness and negligence caused said car to be started forward suddenly whereby she was thrown violently from the steps of the rear platform of said car to the brick-paved street at said place, thereby causing her permanent injuries to her damage in the sum of $10,000.

The defendant company answered said petition, first, denying generally the negligence charged; secondly, that whatever injuries the plaintiff may have received were directly the result of her own carelessness and negligence, in this, that the plaintiff carelessly and negligently and without exercising ordinary care alighted from said ear while the same was in motion, and was further negligent in stepping and alighting from said car baek-wardly, which careless and negligent conduct caused or directly contributed to her injuries.

A reply was filed by the plaintiff denying the negligence and contributory negligence charged.

The plaintiff recovered a verdict and judgment against said company for $2250.00.

In the petition in error filed in this court for the reversal of said judgment are many grounds of error alleged, but we will notice only such as were brought to the attention of said court in argument and which include the principal questions saved upon the record.

It was argued that the verdict of the jury in this case is against the manifest weight of the evidence. It will be conceded that if a reviewing court was clothed wdth the prerogative of a jury in passing upon the facts as they appear of record here, where the court has not the opportunity of seeing or hearing the witnesses as they testified upon the witness stand, and where the judgment of the court is based alone upon what the typewritten record contains, there might be some hesitancy in reaching a conclusion that the jury had done full justice to such evidence, under the instructions given by the trial court. In thus speaking we have special reference to the number of witnesses testifying to what they observed immediately before the defendant in error received her injuries. But, as is well known, the number of witnesses to a fact, or to a given state of facts, does not necessarily control the action of juries or determine the rights of parties. Juries are not only the judges of the credibility of witnesses but of the weight to be given to their evidence as well. Applying this rule of law, how does the case stand? The defendant in error here testifies that when she boarded the car in question she notified the conductor that she desired to get off at Wendell Place; that when the conductor took her ticket she again notified him that she desired to get off at said place; that just before said car reached said place the conductor announced Wendell Place when she arose from her seat in said car and walked back toward the rear door, of said car and before reaching said door said car stopped; that she continued her way out of said car on the rear platform to get off said car and taking hold of the hand-rail on the right, she attempted to descend the steps' of said car and v hile in the act of stepping on the second and last step, said car suddenly started and threw her violently off said ear and onto the hard brick-paved street, whereby she sustained severe if not permanent injuries. That she boarded said car, that she told the conductor where she desired to get off said car, that she rose in her seat and walked toward the rear door of said car upon the announcement made by the conductor that Wendell Place was about to be reached, that said ear did stop at Wendell Place and that she attempted to alight from said car at that place by descending the steps thereof and was seriously injured seems to be uneontradicted, the only question in controversy being as to whether or not she descended, or attempted to descend, said car steps and alight from the ear after the same started and when the same was in motion. As stated, she testified that the car was-at a stand-still when she attempted to alight, while several witnesses for the defendant below testified otherwise. Before argument, the following written requests were submitted to the trial court to give in charge to the jury the following special instructions which were so given :

“If you find from the evidence that the sole cause of plaintiff receiving her injuries was her stepping from the car while in motion, if you so find, then I will say to you that this verdict should be for the defendant.”
.“If you find from the evidence that the plaintiff and defendant ivere both negligent and the joint negligence of both directly caused plaintiff’s injuries, then the plaintiff cannot recover and this verdict should be for the defendant.”
“Plaintiff cannot recover herein if she was negligent in alighting from said ear w'hile the same wms in motion, if you so1 find, and such negligence was the direct and approximate cause of her injuries.”

Under these instructions, with the right resting in the jury to pass upon the disputed facts of the case under the evidence of witnesses testifying before them, was not the determination of such facts a finality? We are aware that the action of a jury may be so clearly against the weight of the evidence as to require that such action be set aside, but it is always proper to inquire into the reasonableness of the history of the facts in question and this should not be lost sight of in the final analysis of the case on review where such error is alleged as a ground for reversal. While the plaintiff appears to have given a natural and reasonable narration of the facts of this occurrence, and while we in no wise wish to be understood as discrediting the testimony of other witnesses testifying in the case, we think the solution of the facts in the case properly rested with the jury. Sharing this view, the contention of the plaintiff in error under this specification of error cannot be upheld.

It was also argued that the trial court erred in its charge to the jury and that because of such alleged error the verdict and judgment, in this case should be set aside. On the degree of care due a passenger when aboard and riding on one of the defendant company’s ears, there seems to be no dispute between counsel for the respective parties hereto, but the controversy, seems to arise over the relative rights of such passenger and carrier in the manner such passenger may be let off and discharged from such car at one of the regular stops along the line of the carrier. This question has already been before and passed upon by the courts of this state.

Wilson v. Railway, 57 Bull. 143 (9 O. L. R., 594); affirmed, no op., Wilson v. Railway, 79 Ohio St., 435; Ohio Electric Ry. v. Vaughn, 38 O. C. C. 83 (24 N. S. 298); Stark Electric Ry. v. Fording, not reported.

Application was made in each of the last two eases for an order requiring the court of appeals to certify, both of which were overruled by the Supreme Court. Again, the same doctrine enunciated in said cases is laid down in Thompson, Negligence, Sec. 3520:

“The high degree of care which the law puts upon the carriers of passengers is not fulfilled in the ease of a street railway carrier, unless its servants before putting the ear in motion see and know that all passengers in the aet of alighting have succeeded in doing so in safety, and that no passenger is in such a situation as would be put in peril by! the starting car.”
“It is the duty of the conductor before putting a car in motion to see and know that no passenger is alighting or otherwise in a position which would be rendered perilous by starting the car. ’ ’
“It is not enough that a reasonable time was given to allow passengers to alight; the carrier has no right to put a vehicle in motion and imperil life and limb, although they may have taken an unreasonable time.”

As was said in the Vaughn ease, supra.

“The view we entertain of tbe obligation of the defendant company, under the circumstances detailed in the testimony in the ease before us, is that in discharging passengers from cars at regular stopping places, they should be allowed- not only a reasonable time to alight therefrom, but the duty rests upon the conductor or other employe having charge of such cars to loot to it that such passengers are safely discharged before starting the car in motion again, and if such passengers are in the act of alighting and are exposed to danger, such duty becomes more apparent.”

Applying the rule laid down to the case at bar, does the evidence for the plaintiff in error as given on the trial meet the requirements of this rule ? Conceding that which is claimed for the evidence on behalf of the plaintiff in error, and without here stopping to rehearse it, we think that it fails to show that the conductor and motorman in charge of the car in question, on the day and at the place named, exercised such a degree of care toward the defendant in error at the time she started to leave said car and alight therefrom as the law as hereinbefore indicated requires.

But aside from this, the plaintiff in error claims that the-trial court erred in charging the jury, especially in that part of said charge wherein said court undertakes “to summarize,” as the same appears on p. 502 of the record. If this was the only instruction as applied to the conduct of defendant in error when-alighting or attempting to alight from said car, we would be-disposed to agree with the contention of counsel, but by referring to p. 500 of the record we find that said court did specially instruct the jury as to the degree of care to be exercised by the defendant in error when alighting or attempting to alight from said ear in the language following:

“Plaintiff was under legal obligation to use ordinary care to preserve herself from bodily harm and injury while a passenger on the defendant’s car and while alighting therefrom; if she was negligent in the performance of this duty and if such negligence of hers either directly and proximately of itself caused her fall and injuries, or in conjunction with defendant’s negligence, as hereafter explained, helped or contributed,. directly and proximately, in causing ber fall and injuries, then plaintiff is not entitled to recover and your verdict should be for defendant.”

True, as counsel contend, said Court omitted to call the attention of the jury to the degree of care to be exercised by the defendant in error when she alighted or attempted to alight from said car in the “summary” referred to, but said charge to the jury is to be considered as a whole. As was held in the case of Hollenden Hotel Co. v. Jackson, 38 O. C. C. 540 (22 N. S. 485), afterward affirmed by the Supreme Court without opinion:

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.” See also Cincinnati Traction Co. v. Dannenfelser, 35 O. C. C. 620 (20 N. S., 553).

As already stated, while the part of said charge referred to by counsel for plaintiff in error might be subject to criticism when taken alone, the whole charge must be read together and when so considered said charge appears to contain a fair and correct statement of the law' as applied to the facts of the case. The court therefore fails to find any error in said charge pre judicial to the plaintiff in error, or in giving to the jury certain special instructions in the several written requests made on be half of the plaintiff below before argument, or in the refusal tc give certain special instructions requested in writing to be giver to the jury by the Court on behalf of the defendant below before argument.

Other errors are alleged in said petition in error, all of which ■we have examined and on such examination we find no such error in the record prejudicial to the rights of the plaintiff in error as to require a reversal of the judgment below, and it therefore follows that the judgment of the court of common pleas will be affirmed and said cause will be remanded for execution.

Powell and Houck, JJ., concur.  