The principal assignment of error goes to the failure and refusal of the trial court to charge the jury that a carrier of passengers is charged with the highest practicable degree of care in looking to the safety of such passengers. No question is made in this court that a carrier of passengers is subject to this rule of care. In the instant case the plaintiff, before argument, by special request number one, asked the court to direct the jury that the defendant owed the plaintiff passenger “the highest degree of pratical care, and if you find by the greater weight of the evidence that as set out in her petition she was directly caused injury because The Cleveland Railway Company failed, through its employees to exercise such high degree of care for her safety, then I charge you that it is your duty to find that the defendant company was guilty of negligence.”
It is not and cannot be claimed that the foregoing does not in a general way state the law.
While we are in some doubt as to the technical sufficiency of the charge above quoted, for the reason suggested, there can be no doubt of the right of the plaintiff to have this principle given to the jury at some time before the submission of the case. After the court had concluded the general charge the plaintiff asked the court “to instruct the jury that as plaintiff was a passenger on this car that the defendant owed to the plaintiff the highest degree of care commensurate with the practical operation of the street car.” The court refused to so charge. This was error.
It is apparent that the court wholly ignored the rule requiring carriers of passengers to exercise the highest degree of care practicable. Nor did the court go further as claimed by the defendant in error and unequivocally charge that the defendant should be found guilty of negligence if it operated the car with a sudden, extraordinary, unnecessary and violent jerk. It did say that if it did not so start the car, it was free from negligence, but it never categorically stated that it would be guilty of negligence if that fact were made to appear.
The correct rule, we take it, is that the negligence of the carrier is not fixed by the ordinary or extraordinary character of the jerk, nor by its violence or suddenness. To *625escape from a threatened collision with another train or from a fire or some other threatening situation, the highest degree of practicable care might require the carrier to start its car with great violence. What the highest degree of care requires depends upon the attendant circumstances. Always, however, the passenger is entitled to that degree of care, and that rule of Jaw was persistently denied) the plaintiff in this case.
The judgment is accordingly, reversed and the case remanded for a new trial.
.{Middleton, PJ., concurs.)