Cunningham v. Dry Dock, East Broadway & Battery Railroad

Per Curiam. The plaintiff alleged in her complaint, and on the trial offered evidence tending to show, that, as she was about to alight from one of the defendant’s cars, which had been stopped for the purpose of permitting the plaintiff to alight therefrom, said ear was suddenly started again through the negligence of the defendant, and plaintiff was thrown to the ground and received injuries. The testimony on the part of the defendant tended to show that the plaintiff received her injuries while attempting to get off the car while it was still in motion; that is to say, the defendant’s testimony contradicted that of the plaintiff. Under these circumstances it was error for the court to refuse to charge that, if the plaintiff stepped off the car while the same was in motion, the verdict of the jury should be for the defendant. Patterson v. Westchester El. R. Co., 26 App. Div. 336; Kuhlman v. Met. St. R. Co., 30 Misc. Rep. 417. Also see Savage v. Third Ave. R. R. Co., 29 App. Div. 556; Kelly v. Same, 25 id. 603, and Anderson v. Same, 36 id. 309. The judgment and order appealed from are reversed with costs, and a new trial ordered, with costs to appellant to abide the event. Present: Tbuax, P. J., Scott and Dtjgbo, JJ. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.