On Petition for Rehearing.
Jordan, J.2. Appellee has petitioned for a rehearing in this appeal, on the ground that we erred at the former hearing in holding that instruction four, given at appellee’s request, was erroneous. We affirmed in our original opinion that the vice of this charge was that thereby the trial court informed the jury, as a legal proposition, that it is the duty of the conductor, or other person in charge of a street-car, to see and to know that no passenger is in the act of alighting therefrom, or in a dangerous position, before putting the car in motion; that the jury was thereby given to understand that under all circumstances it is the duty of the conductor in charge of a street-car to see and know that no passenger is in the act of alighting from such car.
*456Counsel for petitioner cite no authorities that can be said to uphold the correctness of the charge in question. In addition to the cases that we cited in the original opinion condemning the instruction, we cite the following: Millmore v. Boston, etc., Co. (1907), 194 Mass. 323, 80 N. E. 445, 11 L. R. A. (N. S.) 140, 120 Am. St. 558; North Chicago St. R. Co. v. Cook (1893), 145 Ill. 551, 33 N. E. 958; Wabash River Traction Co. v. Baker (1906), 167 Ind. 262; Citizens St. R, Co. v. Jolly (1903), 161 Ind. 80; Gilbert v. West End St. R. Co. (1894), 160 Mass. 403, 36 N. E. 60; Colorado, etc., R. Co. v. McGeorge (1909), 46 Colo. 15, 102 Pac. 747, 133 Am. St. 43.
The case of North Chicago St. R. Co. v. Cook, supra, arose out of the alleged negligence of defendant street railway company in injuring plaintiff while he was attempting to board one of its street-cars. The court in that appeal, in considering the duty that defendant company, through its conductor, owed to the plaintiff, said: “Carriers of passengers are held to the exercise of the utmost or highest degree of care, skill and diligence for the safety of the passenger that is consistent with the mode of conveyance employed. The car or train was in control of the conductor, and he was required to know, if by the exercise of due care, caution and diligence in the discharge of his duties he could know, whether any person was attempting to get on or off his train or car, before permitting the same to start in such manner as would be liable or likely to injure a person so getting on or off the same.”
In Millmore v. Boston, etc., Co., supra, the court, in speaking of what was required of the conductor in charge of a car, said: “He must exercise reasonable care, as above defined, to see that the passenger is on or off the car. On the other hand, the rule is not that he must absolutely see whether the passenger is on or off. In this, as in every other detail, there is resting upon him the same degree of care, namely, the highest care consistent with the proper transaction of *457the business; and, if he has exercised that degree of care, he has not been negligent.”
There are many other authorities upon the same line, but we do not deem it necessary to cite them. It is sufficient to say that all are in harmony with our holding in respect to the instruction in this case, and also with the rule affirmed in the case of Indiana, etc., Traction Co. v. Keiter (1911), ante, 268.
Under the law as announced by the court, by the instruction in question, the jury may have been led to believe that it was absolutely the duty of the conductor or person in charge of the car on which appellee was a passenger to know that she was in the act of alighting therefrom at the time it was put in motion, regardless of the fact as to whether the person so in charge had an opportunity to know that she was in the act of alighting from the car, and without regard to the question whether he at the time, if he had exercised the care that the law required, could have known that she was in the act of leaving the car.
3. Finally it is contended that the instruction, if erroneous, as shown by the answers of the jury to the interrogatories, is harmless. The court having erred in giving the instruction, the legal presumption follows that such error was prejudicial to appellant, and the burden is on appellee to show the contrary by the record. Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369. The answers of the jury to interrogatories propounded to it do not sustain the contention of appellee, that the error in giving the instruction was harmless.
We adhere to our holding at the former hearing, and the petition for rehearing is therefore overruled.
5. Appellant in its petition to have the cause transferred from the Appellate Court to the Supreme Court, under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, set out therein the instruction in question, and charged that the decision of the Appellate Court in sustaining or *458upholding the giving thereof to the jury by the trial court contravened ruling precedents of the Supreme Court. Appellee objected to the sufficiency of the petition, on the ground that the ruling precedents alleged to be contravened were not specifically mentioned nor pointed out. This court, however, granted the petition, and ordered the transfer of the cause. Appellee now requests that her petition for rehearing be granted, and that thereupon the court remand the case to the Appellate Court, because of the insufficiency of the petition on which the case was removed to this court. Upon no view can this request be sustained. It certainly would be an unauthorized procedure, under the provisions of the statute under which this case was removed to the Supreme Court, for appellee, at this stage of the case, to demand that it be remanded to the Appellate Court, on the ground that the petition upon which it was transferred to the Supreme Court was insufficient.
Appellee’s petition to remand is overruled.