The opinion of the court was delivered by
The ease presented by the plaintiff, who-was a very young child, was that she was thrown from an electric car of the defendant company, after she had entered
In disposing of the case it will be necessary to consider but one of the numerous assignments of error which have been filed, namely, the refusal of the trial j udge to charge the jury that “the starting of a car before a passenger is seated is not negligence.”
Not only was this request refused, but it was left to the jury to say whether it was negligence vo start a car while the plaintiff was on her way to a seat.
I think that the refusal to charge this request was error. It is a matter of common experience that thousands of people daily ride in these cars without being seated, and that their doing so is unaccompanied by any danger; that while they are doing so the cars are stopped and started again at every street corner, with perfect safety to such travelers. It may, perhaps, be that a greater degree of care in the starting of a car is required when some of the passengers are standing than when they are seated, but it is no part of the duty of these companies to refuse to carry on their cars more passengers than can be seated therein, or to delay starting them while any of such passengers remain standing. And this is equally true in the case of a child non sui juris, accompanied b]r and in the care of its parent, as in that of an adult.
The judgment below should be reversed.