I base my dissent principally upon what I conceive to be error committed in overruling the appellant's objection to appellee's instruction No. 4 and in giving said instruction. That instruction, after telling the jury that it was the duty of the appellant to exercise for the safety of the passenger the highest degree of skill and care, continuing, was couched in the following language: "Therefore, if you find from the preponderance of the testimony in this case, that the plaintiff was a passenger upon one of the defendant's cars and, was herself free from fault or negligence, and that she was injured by reason of the failure of the defendant's operator of the car to exercise for her safety that degree of care above stated, and that the operator, before the plaintiff, after being accepted as a passenger had a reasonable opportunity, in the exercise of usual and ordinary care, to become seated, negligently started the car with such a sudden and violent jerk as to throw, and did throw her to and upon the floor of the car, and that she was thereby injured, she at the time being free from fault or negligence, upon her part, your verdict should be for the plaintiff."
A number of objections are raised to this instruction which perhaps might have been cured by instructions given at appellant's request, but that part of the instruction, i.e., "and that the operator before the plaintiff, after being accepted as a passenger had a reasonable opportunity in the exercise of usual and ordinary care to become seated, etc.," was not cured by any subsequent instruction and, in my opinion, was a clear intimation to the jury that the sudden and violent starting of the car *Page 218 before the appellee had an opportunity to take her seat was negligence.
The authorities relied upon by the appellee to sustain the instruction go no further than to hold that it is the duty of the operator of a car not to start the same until the passenger has taken a safe position. The instruction goes further and would require the motorman not to suddenly start his car as long as a passenger had not had an opportunity to be seated after having entered the car. This certainly is not the law. The most that could be said of the fact that the car was started before the passenger had time to be seated is that this would be a proper matter of argument on the question of whether it was negligence to suddenly start the car.
The appellant made a specific objection to the language singled out in the instruction and quoted above. If there was no other vice in the instruction, it was erroneous in singling out a particular class of testimony and in directing the jury to consider it and calling it especially to their attention. We have frequently held that it was not error to refuse such an instruction. Western Coal Mining Co. v. Jones, 75 Ark. 76, 87 S.W. 440; Jenkins v. Quick, 105 Ark. 467, 151 S.W. 1021; Scott v. State,109 Ark. 391, 159 S.W. 1095. So, where such an instruction is given, the error whereof is pointed out in a particular way, it is error to give the same with the objectionable language retained.