The plaintiff, while a passenger on a street car of the defendant company, operated by electricity, was either thrown or fell to the ground while she was attempting to get off the ear. *274For injuries caused thereby she prosecutes this action, alleging as affording a right of recovery that she was thrown to the ground by the sudden and negligent starting of the car as she was getting off. A verdict was returned for the plaintiff, a new trial was refused, and the defendant appealed.
1. The evidence justified the conclusion by the jury that the car was started suddenly as the plaintiff was in the act of stepping off, and that the persons operating the car were wanting in care in this matter. The car had stopped at the plaintiff’s signal, to let her off. The seats extended quite across the car from side to side. Two passengers occupying seats outside the plaintiff first got off, and she followed without unnecessary delay, as may be inferred from tiie evidence.
2. The refusal to give the second requested instruction on the part of the defendant was not error, for its substance was given in other instructions to the jury.
3. The court instructed the jury to the effect that, if the plaintiff was put in a position of peril by the sudden starting of the car, and jumped off as the car started, and if a person of ordinary prudence might have done the same thing, it would not be contributory negligence. This is claimed to have been erroneous, because neither the pleadings nor the evidence presented a case to which such an instruction would be applicable. If that were so, it would seem that the jury could not have been misled by the instruction, the correctness of which we are not asked to consider. But we think that the facts as presented by the evidence rendered it proper for the court to state the law applicable to such a case. The evidence on the part of the defendant seems to have been directed to showing that the car had started before the plaintiff got off, and that she stepped off while it was in motion. The case -would have justified the conclusion that the car started almost simultaneously with her leaving it, and whether it was a little before or at the very time of her doing so was for the jury to consider. The conductor testified that he “saw that she was in that position that she was going to fall, and I tried to get the car stopped as soon as I could, to save her.” If, as might be anticipated, the jury should consider that she had proceeded so far in getting off, *275when the car started, that she could not safely stop her movement and retain her place on the car, and hence “jumped” or stepped off while at that instant the ear was moving, the applicability of the instruction of the court is apparent.
é. What has just been said is also applicable to the eighth requested instruction, which was refused by the court. It was faulty as a proposition applicable to this ease, because it declared without qualification that the attempt of the plaintiff to step off the car while in motion would preclude a recovery. It disregards the possible fact that the starting of the ear was so nearly simultaneous with, although perhaps actually preceding, her stepping off, that practically she had no choice after the car started, but had to step off to avoid falling, not being able to stop her movement in time to retain a safe position ■on the car.
5. We need not consider whether the court stated to the jury in too strong terms the general rule of care incumbent on carriers of passengers, — “the highest which human foresight can attain.”
The circumstances of this case did not require the jury to consider with discrimination the precise degree of care which the defendant ■ought to have exercised. The conductor, being on the same ear with the plaintiff, and that an open ear, stopped it to let the plaintiff and ■other passengers get off. He gave the signal for starting again. It does not appear that he could not see whether the plaintiff had got off when he started the car; and, if the car was started while she was ■getting off, there being no apparent excuse therefor, it was negligence for which she has a right of action, if not herself in fault. The jury must have found the fact in issue against the defendant, and, this being so, the latter would be responsible under any possible form in which the general rule may be expressed as to the degree of care required of common carriers of passengers.
One or two other assignments of error are so plainly not sustainable that we forbear mentioning them particularly.
Order affirmed.
{Opinion published 53 N. W. Rep. 1060.)