STREET CAR PASSENGER THROWN AND INJURED WHILE ALIGHTING.

Court of Appeals for Richland County.

(Judge Farr of the Seventh Appellate District sitting in place of Judge Shields.)

#### The Mansfield Public Utilities & Service Company v. Sue Wolfe.

Decided, January 10, 1919.

*Negligence*— Street *Gar Passenger Not Chargeable with Contributory Negligence xohere Thrown and Injured by Premature Starting of the Car*— Conductor *Must Know all Passengers are in Places of Safety before Starting Gar*— Charge *of Court.*

Contributory negligence can not be charged against a street car passenger who was thrown and injured by the premature starting of the car from which he was attempting to alight at a regular stop for the discharge of passengers.

*McBride & Wolfe,*for plaintiff in error.

*Mabee & Anderson,*contra.

Houck, J.

This ease comes into this court on errors alleged to have been committed in the trial of the case in the common pleas court. The parties here stand in the reverse order from where they stood in the court below.

The plaintiff below sets forth in her petition that on the 26th day of February, 1917, she was a passenger on the ears of plaintiff from Shelby to Mansfield, Ohio; that it was customary for passengers to alight from said ears just north of where the tracks of the Erie railroad cross S'pringmill street in the city of Mansfield, Ohio, and while attempting to alight from said car and while upon the steps of said car and about to step down therefrom on the street, the defendant’s servants and agents *126who were in charge of said ear negligently and without any notice or warning whatever, started the same suddenly forward thereby throwing plaintiff violently to the pavement and as a result of, same breaking her arm and causing her other injuries from which she suffered pain, etc. Plaintiff prays for damages in the sum of $5,000.

The defendant answered, being in the nature of a general denial, and for a second defense alleged that plaintiff was guilty of contributory negligence which was the cause of her injuries, if any she received.

The plaintiff filed a reply in which she denied the charge of contributory negligence. Upon the issues thus raised trial was had and a verdict in favor of plaintiff below was returned by the jury in the sum of $750. The usual motion for a new trial was filed, heard and 'overruled.

The errors relied upon and presented in oral argument to this court by counsel for plaintiff in error are as follows:

First. That the trial judge erred in his charge to the jury.

Second. That the verdict is excessive.

Third. That the verdict is against the weight of the evidence.

We have made a careful examination of the record and considered all of. the claims of alleged error referred to in oral argument; also all of the errors claimed by plaintiff in error as set forth in the brief of its counsel.

Coming now to the first alleged error we will say that we have read the charge of the trial judge with much care. It is claimed that the court erred in charging as follows:

> “But if after the car came to a stop the plaintiff proceeded to leave said car and while it was stopped about to alight therefrom, and the car was then moved forward and such movement precipitated her off the steps of the car, then she would not be chargeable with negligence in attempting to alight therefrom.”

One of the conceded facts in this case is that the car in which the plaintiff was riding had come to' a full stop, and that the conductor alighted therefrom and went to the railroad crossing, and while there motioned the motorman of the street car *127to proceed; that after the conductor left the car the plaintiff followed him and started down the steps to alight therefrom, and that while attempting to do so the conductor, who was several feet in front of the car in question, signaled the motormán of said car to move forward and just at that moment plaintiff was thrown to the pavement.

It is urged by counsel for plaintiff in error that said charge is errqneous, because it required too high .a degree of care upon the part of the conductor, and that it eliminated entirely any knowledge of the conductor as to the wishes of the- passenger to alight.

We’think this question has ben fully settled by a rule laid down in Thompson on Negligence, Section 3520, which reads:

> “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 car. in motion see and know that all passengers in the act of alighting have succeeded in doing so in safety and that no passenger is in such a situation as to 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. ’ ’

Applying this rule of law to the conceded facts in this case, we feel that the trial judge committed no error in charging the jury as he did. We might further add that we are of the opinion that the charge as a whole was clear and that it covered every question involved in the instant ease and we find no error in this regard.

As to the second ground of error that the verdict is excessive, we will say that in view of all of the facts in the case and which were passed upon by the jury, and there being nothing in the record that indicates that the same was rendered from prejudice or passion on the part of the jury, we will not disturb the verdict upon the claim that it is excessive.

As to the third ground of alleged error, that the verdict is manifestly against the weight of the evidence, we are bound to find and do find that this claim is not well taken.

*128It therefore follows from the observations already made that this court will not disturb the verdict of the jury, and the judgment entered thereon must stand. Judgment affirmed’.

Powell and Farr, JJ., concur.