The defendants’ objection that the plaintiff has set forth his cause of action in more than one count is not valid. It was provided by St. 1851, c. 233, § 2, that “ one count and no more ” should be inserted in the declaration for each cause of action. But in the revision of this act in 1852 this provision was changed. By St. 1852, c. 312, § 1, “ one count only need be inserted for each cause of action.” This language does not restrain the plaintiff from inserting more than one, if he deems it expedient to do so, but leaves it at his option. It was clearly intended to alter the statute of the previous year in this respect.
Under the instructions of the court, the jury must have found that, though the plaintiff was wrongfully upon the defendants’ car, the driver ordered him to get off from it, intending thereby to make him leave it while in motion; that the plaintiff, by' reason of being so ordered, left the car while it was in motion, and was thereby injured; and that in getting off he used ordinary care.
If the plaintiff had been a person of mature age, the mere words of the driver could not have been regarded as equivalent to a forcible ejection of the plaintiff from the car at a time when it was dangerous to leave it. For such a person might have exercised his own judgment as to the peril he might incur in attempting to obey the order. But the plaintiff was a child about ten years of age. His obedience would be naturally expected, without regard to the risk he might incur; and in respect to a child so young, the command would be equivalent to compulsion. As he was in fact badly injured, though it is found by the jury that he used due care, it is plain that the car was moving at such á rate that the attempt to get off was dangerous. The case therefore presents the question, whether, if a child of such tender years wrongfully gets upon the platform, and is not immediately expelled, the driver may afterwards expel him while he is driving at such a rate as to make it dangerous for the child to leave ; or whether he must not first stop the car, or slacken its speed to such a degree that the child may leave the ear in safety, provided he uses' due care. It is iifferent from the question what *562he might do for the purpose of preventing the child from getting on, or forcing him back immediately after he came upon the platform; and that subject need not be discussed here.
It was the right as well as the duty of the driver to protect the property of the defendants which had been intrusted to his care and management. But it is said in Bird v. Holbrook, 4 Bing. 628, that for the protection of property no man has a right to resort to violence greater than the occasion requires. In 1 Hilliard on Torts, (2d ed.) 160, the law applicable to this subject is stated as follows: “ The fact that a plaintiff is a trespasser or violator of the law does not of itself discharge another from the observance of due and proper care towards him; or the duty of so exercising his own rights as not to injure the plaintiff unnecessarily. Neither will it necessarily preclude the plaintiff from a recovery against a party guilty of negligence.” The cases of Norris v. Litchfield, 35 N. H. 271, and Kerwhacker v. Cleveland, &c. Railroad, 3 Ohio (N. S.) 172, contain a full discussion of the doctrine, and a reference to the authorities. In Barnes v. Ward, 9 C. B. 420, it is said that a trespasser is liable to an action for the injury which he does, but he does not forfeit his right of action for an injury sustained by him. These doctrines must be regarded as reasonable, and the contrary doctrine would be unreasonable. If, for example, a person were to go on board of a ship just ready to set sail, it would be very unreasonable to hold that, because he was there without light and as a mere trespasser, the master might compel him to leave the ship by jumping into the sea several miles from the shore. It must be admitted that this is an extreme case, but on the same principle it would be unreasonable to hold that when the driver of the defendants’ car found the plaintiff riding upon the platform as a trespasser he might compel him to leave while he was driving at such a rate as to make the act dangerous. The plaintiff was liable to an action for the trespass com mitted by him, and he was liable to be removed ; but it was not necessary or reasonable that the right of removing him should be so exercised as to expose him to personal injury. For the negligence of the defendants’ servant in this respect, they are *563liable. It was in his power, by reasonable efforts, to make it safe for the plaintiff to obey him, and he ought to have used such efforts.
It does not appear that the plaintiff participated in this carelessness. If we assume that he was not only guilty of a trespass but of carelessness in getting upon the ear, yet that carelessness was past, and he was riding in safety; so that his carelessness in getting upon the car did not contribute to the injury as a proximate cause. In leaving the car he acted by constraint.
The doctrine that a party cannot recover in a ease where he must trace his title to recover through Ms own illegal act, as stated in Way v. Foster, 1 Allen, 408, and the other cases cited by the defendants’ counsel, is not applicable to such a case as this. The cause of action is the wrongful act of the defendants’ servant in compelling the plaintiff to leave the car while he was driving at such a rate that, though the plaintiff used due care, the act of leaving caused an injury to him. The plaintiff’s trespass is a separate matter.
It is contended that the parents of the plaintiff were guilty of negligence in permitting the plaintiff to be abroad at that time. But the court cannot know this judicially. , The question whether a boy of that age has sufficient capacity to take care of himself should be left to the jury. Exceptions overruled.