Wainwright v. Interurban Street Railway Co.

MacLean, J. The plaintiff alleged that on the 3rd day of June, 1903, the plaintiff herein duly signalled to the motorman and conductor in charge; that the “ car thereupon came [646] to a standstill and plaintiff was carefully and prudently in the act of boarding said car when, without any warning to said plaintiff, said car was suddenly and violently started causing plaintiff to be thrown from said car.” He testified on his direct, that he attempted to get on the car backward; that he had an umbrella and a small parcel in his right hand, attempted to get on, took hold with his left hand on the upright of the car and his right foot on the board, and that the car stopped; but, on cross-examination, he said: “ it might be moving a little bit; a child could have got on it though; I say a child could have got on.” The only other witness to the alleged accident said he hailed the car, the car stopped and he tried to get on. Upon this state of the evidence, for none was offered by the defendant except as to the absence of any report of the alleged accident, and under the pleading, it was error and afforded a good exception to charge: “ The mere fact of a car moving does not militate against the plaintiff. The law says it becomes a question for you to say whether or not that was negligence on the part of the defendant. If the plaintiff could reach the car and the car was slowly moving, the law leaves it for you to say whether or not the plaintiff was guilty of negligence in attempting to board the car at that time.” It was further error to refuse to charge; “that the plaintiff, in his complaint in this case, alleged that the car came to a standstill for the purpose of allowing him to board it and that, if the jury believes that the car was moving when he attempted to board the car, no matter how slightly, that the verdict must be for the defendant.” Coleman v. Metropolitan St. R. Co., 82 App. Div. 435. Scott, J., concurs; Gildebsleeve, J., taking no part. Judgment reversed and new trial ordered, with costa to appellant to abide event