Goldstein v. Metropolitan Street Railway Co.

Greenbaum, J. The complaint alleges the negligence of the defendant in starting the car after it had been stopped and after plaintiff had started to alight. Under such a pleading, the defendant was entitled to the charge which it asked the court to make to the jury that “If plaintiff alighted from the car when it was moving, no matter how slowly, provided it had not already stopped, she cannot recover.” [648] The court declined to charge as requested and added, “ It is a question for you to determine if the ear was moving so slowly that the plaintiff could have gotten off without any accident happening; yon have a right to consider that.” The instructions of the court as above quoted constituted reversible error. Coleman v. Met. St. Ry. Co., 82 App. Div. 435. The action was not brought upon the theory that the plaintiff stepped from a moving car under such circumstances which would absolve her from negligence, but upon the clear cut allegation that the car had been brought to a full stop and had been started before she had an opportunity to alight. The judgment must he reversed and a new trial ordered, with costs to the appellant to abide the event. Scott and Giegerich, JJ., concur. Judgment reversed and new trial ordered, with costa to appellant to abide event.