Rugg, C. J.

These are two actions whereby the plaintiff seeks to recover for the conscious suffering and the death of her intestate, who received fatal injuries from a car of the defendant company.

*541. The defendant’s request that a verdict be directed for it in each action was denied rightly. There was evidence from which it might have been found that the plaintiff’s intestate, approaching toward the rear an open car of the defendant for the purpose of becoming a passenger, was beckoned by the conductor to a point farther forward, and as he was in the act of getting upon the car it started under such conditions that he lost his hold and was injured. In view of these facts it is too plain for further discussion that a general verdict for the defendant ought not to have been directed. While the weight of the evidence on the printed record seems to indicate strongly that the accident happened in another way, it does not as matter of law require such a finding.

2. The defendant contends that it is not liable for the death of a passenger caused by the act of a servant who is in the exercise of ordinary care but fails to attain to the highest degree of care consistent with the conduct of its business. St. 1907, c. 392, under which this action is brought, is a penal statute. Jones v. Boston & Northern Street Railway, 205 Mass. 108. It gives a cause of action if the life of a passenger is lost “by reason of the . . . negligence of its agents or servants while engaged in its business. ” Negligence in this connection means the want of care which the law requires under the circumstances disclosed in each case. If the degree of care required is the highest consistent with the conduct of the business of the common carrier, then the negligence referred to in the statute is a failure to exercise that degree of care. Indeed, the phrase, “highest degree of care,” which has come to be used commonly as expressing the duty of a common carrier towards its passengers, when accurately analyzed, means only that degree of caution which is reasonable in view of. the relation of the parties and the fatal consequences which may ensue from breach of this duty. Donahoe v. Boston Elevated Railway, 214 Mass. 70. See Renaud v. New York, New Haven, & Hartford Railroad, 206 Mass. 557, 560. The contention of the defendant in this regard cannot be supported.

3. It is not necessary to determine whether the portion of the charge excepted to was inaccurate, in that it omitted to state with clearness and fulness the. element that the conductor was not obliged to wait for those running from a distance and in *55that way expressing a desire to board the car, although not then in a position to avail themselves instantly of the invitation to become passengers held out by the stopping of the car, and that such invitation might be withdrawn at any time before actually accepted by a would-be passenger, (Davey v. Greenfield & Turner’s Falls Street Railway, 177 Mass. 106. Duchemin v. Boston Elevated Railway, 186 Mass. 353,) nor to determine whether the charge as given was adapted to the evidence for the reason that at the conclusion of" the charge the judge further instructed the jury that if the plaintiff’s intestate attempted to board the car after it was started, the plaintiff was not entitled to recover in either action. This was sufficiently favorable to the defendant. This additional charge was given at the request of counsel for the plaintiff made in the hearing of the jury. While it is not good practice for the counsel to suggest in the hearing of the jury instructions which he is willing should be given, it cannot be said that any harmful error is disclosed in this regard.

4. There was no error in the admission of the testimony to the effect that the plaintiff’s intestate said, before the bringing of the present action, that his back was broken and he knew that he was not going to get better. As appears from the tenor of the question, it was offered not for the purpose of proving the physical condition of the intestate but his state of mind, and by inference his mental suffering. This was admissible under IL L. c. 175, § 66, which has been liberally construed.

5. During the cross-examination of the conductor of the defendant’s car, the counsel for the plaintiff, after inquiring as to the number of witnesses whose names were taken by him, and eliciting the fact that he could not tell precisely how many there were upon the accident report made by him, asked counsel for the defendant, “May I see the report for the purpose of refreshing his recollection as to the number of witnesses ? I just want him to take it. ” The reply was a proffer of the report if the plaintiff wanted it to go in evidence, but not otherwise. The witness did not ask for the report for the purpose of refreshing his recollection. In his argument to the jury, counsel for the plaintiff referred to this circumstance, and argued at length that “the defendant did not dare to produce the report for the reason that *56if he had done so it would appear that the report contained the names of witnesses whom the defendant did not call and could not call for the reason that if they had been called, they would have substantiated the plaintiff’s contention as to the manner in which the accident happened.” Seasonable interruption was made and exception taken to this argument. Although requested, the trial judge refused to rule that the argument was improper.

The defendant’s exceptions to this incident must be sustained. The argument was unfair and unwarranted by the evidence. Not only did the defendant not refuse to produce the report, but proffered it to the plaintiff on condition that it should be introduced in evidence. Under these circumstances, there was no ground for the inference that the defendant had not called all the witnesses that were named in the report, nor that it had failed to call them for the reason suggested. This is a repetition of the same argument under slightly different circumstances, which was remarked "not to have been legitimate” in Jones v. Boston & Northern Street Railway, 211 Mass. 552, 555. As was said by Chief Justice Field in McKim v. Foley, 170 Mass. 426, at 428 : “The practice of permitting counsel to comment on the failure of the opposing party to call witnesses to facts needs to be used with caution, and such comment should be permitted only where it appears that the witnesses could have been produced, and that it is a fair inference from the conduct of the party, under all the. circumstances, that he knew or believed that the testimony of the witnesses would be adverse, and for that reason did not produce them. ” The charge of the judge failed to correct the error.

Exceptions sustained.