The plaintiff in this case, in September, 1865, was on the top of one of the cars of the defendant as a passenger, where there were two others, with the driver. After descending from the car one of its wheels passed over his foot and injured him, for which injury, and the damage resulting therefrom, this action is brought.
Upon the trial the court dismissed the complaint, on the ground that the plaintiff was guilty of negligence, such as to defeat the action. The questions presented in this case upon the facts, are of such a character as should have been *435submitted to the jury. It is not entirely clear the plaintiff would have left the car at the time he did, had it not been for the conduct of the driver. The motion of the car doubtless produced the injury; or in other words, if the car had been stationary the wheel would not have passed over his foot. If the driver had stopped and let the plaintiff off, no such injury would have occurred.
It was a clear case of negligence on the part of the defendant, but this is not enough to entitle the plaintiff to recover; the plaintiff must come into court without fault on his part. It was the duty of the driver to stop the car when requested by passengers, and let them off; but if he does not do so, this would not authorize a passenger to negligently expose himself to injury by jumping from the car when in rapid motion, such as to be dangerous to life or limb.
Whether the plaintiff would have got off the car had there been no interference with him by the driver, is not upon the evidence so free from doubt as to authorize the dismissal of the complaint for negligence on the part of the plaintiff. If the plaintiff left the car voluntarily, without interference on the part of the driver, that might constitute such negligence as to defeat the action, provided the car was moving at a high rate of speed. But if he merely rose up preparatory to leaving, indicating to the driver his determination to leave the car, in addition to the request he had already made, and thus induce the driver to stop ; and then the driver pulled off his cap, and twice struck at him with a whip, and in dodging, plaintiff fell from the car and received the injury complained of, would present a very different case, and one upon which the court would not have been justified in dismissing the complaint. This version of the case might have been adopted by the jury, and we think is sustained by the evidence before us. Certain facts are undisputed:
1st. The plaintiff was a passenger upon the top of the car.
2d. The driver refused to stop the car when requested.
3d. Plaintiff left the car while it was in motion; but whether plaintiff left at the time he did of his own free will, or whether his action was precipitated by the conduct of the. *436driver is not certain, although there was evidence tending to prove it of such a character, that undisputed as it was, in the absence of the testimony of the driver, that would have justified the jury in so finding. This question should have been submitted to the jury.
The evidence also shows that the car was moving at a slow rate of speed, and although the plaintiff was upon the top of the car, it was a question for the jury to say whether the plaintiff was guilty of a want of ordinary care and caution, in descending from the car under such circumstances. It is often quite as safe to step from a car in motion, as if it were stationary; depending upon the rate of speed at which it is moving. A oar may be under such rapid headway as to make it imminently dangerous for passengers to leave it. It is not any particular rate of speed by which the conduct of the passengers is to be regulated in entering or leaving cars, that governs; but .the rule is, that of exercising ordinary care, and caution under the circumstances surrounding them.
It cannot, therefore, be said that the plaintiff, as a matter of law, was guilty of negligence in leaving the car while in motion, even if done voluntarily. Nor can it be successfully contended, that being upon the top of the car was evidence of negligence, for he was called up there by the driver, the car being full "in the inside.
Thus far we have considered the case upon the evidence of the plaintiff, in connection with the undisputed facts of the case. We think the evidence of the plaintiff was susceptible of a construction entirely consistent with such want of negligence on his part, as to have required the submission of the case on his part to the jury.
But there is another view of this case which is equally controlling. The witness Hass, testified: “ I saw the driver take hold of the boy by the head and by the cap ; he took his cap away, then he let him have- the cap ; then he hit him with the whip; the car was going at slack rate of speed; I saw the boy trying to get 'off; after the driver hit the boy, he tried to dodge the blow of the whip (probably *437the second blow), and by so doing, he fell and got under the car.”
This evidence should have been submitted to the jury in connection with the testimony of the plaintiff; for whether this conduct of the driver was willful or negligent, or otherwise, if the plaintiff was without fault, the defendants are liable for such injuries done while driving a vehicle for the conveying of passengers, in the same manner as the driver would be liable himself (1 R. S. §§ 6 and 7, p. 649).
If the jury had found upon these facts, that the act was willful or wanton on the part of the driver, the plaintiff would have been entitled to recover. We must, therefore, sustain the exceptions taken by the plaintiff, and order a new trial, with costs to abide the event.
Judgment reversed.