I dissent. As I view the facts and understand the principles of law applicable thereto, the judgment in this case cannot be upheld because: (1) The evidence wholly fails to show negligence on the part of appellant company; and (2) because the evidence as a whole, and respondent’s testimony in particular, shows that he was guilty of contributory negligence of the most reckless character.' The negligence alleged in the complaint is that:
*522“.Plaintiff attempted to get off said car, but, while be was so doing, the defendant, through its servants so negligently and carelessly managed and operated said car that said car suddenly moved forward with a jerk and accelerated speed, thereby throwing the plaintiff violently to the ground.”
The facts and circumstances leading up to and which culminated in the accident complained of, briefly stated, are as follows:
Respondent, on the night in question, boarded the Twenty-Second Street car and paid the usual fare. When the car arrived at the switch on Washington Avenue about forty feet south of the center of the intersection of Washington Avenue and Twenty-Second Street it was stopped for the purpose of letting off and taking on passengers. Immediately after passing the switch the car turned east on Twenty-Second Street. As to what occurred from the time the car started on the curve until the happening of the accident complained of, respondent testified in part as follows:
“I was sitting on the rear seat on the left-hand side of the car, and as soon as they pulled off the main line I immediately stepped back on the platform and said (to the conductor), if you are going to make another trip' on the bench give me a transfer and I will get the Washington Avenue car right back of us.’ He said, ‘All right.’ While this conversation was going on, and he was preparing the transfer, it was still moving upgrade, . . . picking up speed right along there, but going at a slow rate of speed, . . . possibly running five or six miles an hour. . . . I was ready to step off when he gave me the transfer, and he said, when he gave it to me, ‘You will have to hurry now, or you won’t get that Washington Avenue car;’ and as soon as he handed, me the transfer I said, ‘Aren’t you going to* slow up so a fellow can get off V So he said, ‘This car isn’t going very fast; you can make it all right.’ ... I made a step for the ground. Just as I went to make the step the conductor gave the motorman a couple of bells, and I could feel the car jerk from under me like. It kind of overset my balance as I was going to step. The car was moving along *523slow, and then this lurch kind of threw me off my balance as I was getting off the step. ... I had noticed signs on the vestibule of the cars about entering and leaving cars, and along with it a sign, ‘Don’t leave or enter the car while in motion.’ ”
Dr. E. E. Higgins, a witness for respondent, testified:
“The conductor sounded one bell just before he handed him (respondent) the transfer, and two just as he handed him the transfer. They were given one right, after the other, not much different between the time. . . . There was a sudden jerk of the car. The jolt was after the bells, if I remember. The car was running all the time from the time it left Washington Avenue.”
J. M. Jensen, the motorman operating the ear, but who, at the time of the trial, had left the employ of appellant, was called as a witness by respondent, and testified:
“We stopped at Twenty-Second Street before we went on the curve. When we got started up the straight track we were going about five or six miles an hour, and gradually picked up speed; . . . that is the usual way of running the car up the hill, . . . The next regular stop was in the middle of the block. . . . After I left Washington Avenue I got one bell. It ordinarily means a stop at the next regular stopping place. I didn’t understand this at first, but I did on second thought. ... I started to turn off the power, and turned it on again.. Then I heard three bells, which is the emergency stop. ... I didn’t have all the current on when I heard the bell. ... I just turned, the current off and on in about half a second. As soon as the current is turned off the car would kind of slow down, and to turn it on again would start it with more or less of a jerk; I don’t know how much. If there was a, lurch or jerk I did not notice it at all. ... At the time. I received the emergency (signal) I would say I was going at a speed of five or six miles an hour.”
Eight witnesses other than respondent, six of whom were passengers on the car in question at the time of the accident, testified in the case. Despondent and Dr. Higgins are the *524only two witnesses wbo observed or felt tbe “jerk” or “lurch” of the car, and their testimony does not show, or tend to show, that the movement of the car on that occasion was anything unusual or out of the ordinary in the operation of street, ears up, over, and down the heavy grades so common in the street car tracks in this intermountain country. Five of the witnesses, three of whom were standing in the rear vestibule of the car and heard what was said by the conductor and respondent, and saw all that transpired at the rear end of the car on that occasion, testified that they neither observed nor felt the jerk or lurch of the car. This evidence is not in conflict nor inconsistent with the testimony of respondent and that given by Dr. Higgins on this point, and, while it is in the nature of negative testimony it nevertheless shows that the “jerk” or “lurch” of the car was very slight, and of such a character as not to endanger or inconvenience the passengers seated in the car or standing in the vestibule thereof. Respondent, in his testimony on this point, said:
“He (the motorman) turned on a little more speed. Q. After he had said that (referring to the foregoing statements attributed to the conductor) how far would you say the car traveled before you started to step off or were thrown off ? A. Perhaps a couple or three feet. . . . Q. You were down on the second step by that time and ready to swing off? A. Ready to step off on the ground, by leap. Q. About that time you say there was a lurch? A. Yes, sir, Q. Just describe . . . the strength of it, or the force of it. A. Well, when anything is traveling along at a slow rate of speed and then gives a little kind of jerk it kind of throws a fellow off his balance quicker than if it was standing still.”
Assuming for the sake of the argument that there is sufficient evidence of negligence on the part of appellant to justify the submission of that question to the jury, yet the contributory negligence of respondent was so glaring as I read the evidence, that the judgment ought not to be upheld. At the time of the accident respondent was in the prime of life (forty-three years of age), and he testified that he never *525felt better in bis life, and was never “in finer mental condition than that night.” He also testified that he was familiar with the printed rule of appellant company which was conspicuously displayed upon its cars as a guidance and warn'ing to all passengers riding thereon; which rule was as follows : “Do not enter or leave cars while in motion.” When the accident occurred the car was about midway between two stopping places and-going at the rate of about five or six miles an hour. Despondent- knew, or at least he was given to understand, that the car would neither stop nor “slow up” for him to alight before it arrived at the next regular stopping place. He testified:
“When he (the conductor) handed me the transfer . . . I said, ‘Aren’t you going to slow up?’ He said, ‘This car ain’t going very fast; you can make it all right’ ”
On cross-examination, he testified:
“The conductor said, ‘This car ain’t going very fast; I think you can make it all right.’ Q. All this time the car was going along? A. Going along. Q. And gradually increasing in speed. ... A. Yes, sir.”
He also testified that it was “awful dark” at the point where he alighted from the car, and, further, that:
“Just before I started to get off, the conductor gave two bells which means go ahead, speed up. . . . The conductor did not say it was going to stop and instead gave the signal for inore speed.”
Counsel for respondent, in the discussion of the case in their printed brief, seem to attach considerable importance to the remark made by the conductor as he handed respondent the transfer. Despondent’s act in getting off the car between regular stopping places, while it was in motion, and at a point where he says it was “awful dark,” cannot be justified or excused because of what the conductor said. These remarks were not in any sense an ordep, direction, or invitation for respondent to get off the car. At most, they can only be construed as a suggestion or expression of opinion that respondent might safely alight from the car. The record shows that respondent was as capable of deciding as *526to whether he could, under the circumstances, alight with safety as was the conductor. Furthermore, the record shows that he had fully decided on getting off the car while it was in motion and before the statements referred to were made. On this point respondent testified in part as follows:
“lie reached in his pocket and got his punchers and his book, and by the time he got the transfer ready for me . . . I was ready to get off. Q. What had you done in the meantime ? A. I had gotten around to the step waiting to get the transfer.”
I think it clearly appears that respondent, in getting off the ear at the time and place he did, was guided solely by his own judgment, and was not influenced in what he did by any act or word of the conductor. Respondent nowhere in his testimony claims or even suggests, that he was induced ten alight from the car on that occasion by anything that was said or done by the employees of the railway company.
The degree of care ■ required of carriers in conveying passengers is well stated by Mr. Justice Straup in Paul v. Railroad, 30 Utah, 41, as follows:
“The carrier is required to exercise ‘the highest degree of care, prudence, and foresight consistent with the practical operation of its road, or, as it is sometimes expressed, the utmost shill, diligence, care, and foresight consistent with the business, in view of the instrumentalities employed, and the dangers naturally to be apprehended, and the carrier is held responsible for the slightest neglect against which such skill, diligence, care, and foresight might have guarded.’ ”
And the general rule, as declared by the great weight of authority, seems to be that the question of whether it is negligence for a passenger to alight from a moving street car is ordinarily a matter for the jury to determine. Most of the cases cited by counsel involve the question of negligence where the accident happens at regular depots or stopping places where the car had either stopped or was slowing down as it approached the stopping place. In this case, however, the accident happened just after the car had left a regular stopping place, was in motion, gradually increasing its speed, *527and at a point midway between stations, where, as testified to by respondent, it was “awful dark.” It seems to me that the affirmance of the judgment in this case makes the carrier an insurer regardless of the negligence of the passenger, which, of course, is not the law. -