Respondent was injured while riding as a passenger on a street car owned and operated by appellant, and this action was instituted to recover damages therefor. The case was tried before the court with a jury, judgment rendered in favor of the city of Seattle, and a new trial granted solely by reason of the fact that the jury were improperly instructed on the question of negligence; and from the order granting a new trial, this appeal is taken.
[1] The court instructed the jury on the theory that appellant, in the operation of its street cars, owed to respondent ordinary care, whereas this court has held that, in passenger cases, the defendant is liable for slight negligence, and that the highest degree of care consistent with practical operation is the duty which the defendant owes. Jordan v.Seattle, Renton Southern R. Co., 47 Wash. 503, 92 P. 284.
The instruction given was incorrect and the order granting a new trial was properly made.
Appellant also raises the question of the sufficiency of the evidence to go to the jury, having moved for nonsuit and also for a directed verdict. But these questions will not be considered at this time, because there is no final judgment in the case. Cookv. Skinner, *Page 341 46 Wash. 246, 89 P. 553; Wait v. Robertson Mtg. Co., 37 Wash. 282,79 P. 926; Cerini v. Chicago, Milwaukee P.S.R. Co.,71 Wash. 310, 128 P. 666; Hammond v. Hillman, 73 Wash. 298,131 P. 641.
The judgment is affirmed.
MILLARD, TOLMAN, and PARKER, JJ., concur.