
    SEXTON v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    April 18, 1899.)
    1. Carriers—Horse Cars—Passengers.
    It is not negligence per se to board a horse car while it is moving very, slowly.
    
      2. Same—Negligence oe Company.
    It is negligence fdr a horse-car company to accelerate the speed of the-car which has slowed down, while a passenger is boarding it.
    8. Same—Question por Jury.
    Evidence that plaintiff and a companion hailed a horse car, and immediately thereafter the car was slowed down, requires the submission to- the jury of the question whether the driver knew, or should have known, ¡chat both persons intended to become passengers.
    4. --Same—Duty op Servants.
    It cannot be said, as a matter of law, that, where a person is seeking ¡to get on a street car either stopped or slowed down for the purpose, rthere is no duty imposed on the servants of the company in charge of the ■car to lo.ok and see if any one else is following, and seeking to take advantage of the car being stopped, to board it.
    Appeal from trial term, Kings county.
    Action by Edward Sexton against the Metropolitan Street-Railway Company. Motion for a new trial on a case containing ex-ceptions to the direction of the trial term dismissing the com;plaint, directed to be heard in the first instance at the appellate -division.
    Exceptions sustained.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, ..HATCH, and WOODWARD, JJ.
    Samuel D. Morris, for appellant.
    ¡Charles F. .Brown, for respondent.
   PER CURIAM.

The defendant operated a horse railroad on 'Twenty-Third street, in the city of New York. On the day of the ..¡accident, the plaintiff and a man named Benson were standing on c the southeast corner of Twenty-Third street and Second avenue. - One of defendant’s cars came along from the east, moving west- • shly towards Second avenue. Plaintiff and Benson stepped for- ■ ward towards the street, Benson signaling to the driver of the ■•-car by raising his hand, and the plaintiff hailing him by call. The ■ -movement of the car was thereupon slowed down to less than an - ordinary walk. The plaintiff and Benson went forward, and -sought to get upon the front platform, Benson being in the lead. When plaintiff’s foot was on the step, and before he got on the 'platform, the speed of the car was suddenly accelerated, and it ¡started forward with a jerk. This threw the plaintiff off. The =car ran across his foot, necessitating its amputation. Such was .the plaintiff’s story, and substantially the same story was told by :±he only witness whom he produced as to the occurrence of the ¡¡accident. The learned trial judge dismissed the complaint at the • -close of the plaintiff’s case.

We think this disposition of the case was erroneous. It was not negligence, as matter of law, for the plaintiff to board the car when it was moving very slowly. Eppendorf v. Railroad Co., 69 N. Y. 195; Morrison v. Railroad Co., 130 N. Y. 166, 29 N. E. 105; Distler v. Railroad Co., 151 N. Y. 424, 45 N. E. 937. The negli¡¿gence of the defendant consisted, not in failing to bring the car ujt® a complete stop, but in accelerating its speed, and starting it S&arward, before the plaintiff had got safely on the car. Morrison v. Railroad Co., supra. The ground on which the learned trial judge seems to have disposed of the case was that the evidence was insufficient to show .that the driver was apprised of the int emtio n of the plaintiff to board the car, and that “after the driver .-.-admitted the first man the railroad company was not under any .-.¡obligation .to have him look around to see if anybody else. was getting on before he. changed the speed of the car.” Of course, if the driver was neither actually apprised, nor should, in the exercise of ordinary care, have been apprised, of the intention of the .plaintiff and his companion to board the car, he was not chargeable with negligence in increasing the speed of the car while they were attempting to get on. But the fact that both the plaintiff and his companion hailed the car, and that immediately thereafter the car was slowed down, was sufficient to require the submission to the jury of the question -whether the driver either knew, or should have known, that the parties were, seeking to become passengers on the car. Nor are we inclined to admit the proposition that, as a matter of law, where one person is seeking to get upon a car, either stopped or slowed down for the purpose, there is no duty imposed upon the servants of the company in charge of the car to look and see if any one else is following and seeking to take advantage of the car being stopped to board it. Dean v. Railroad Co., 34 App. Div. 220, 54 N. Y. Supp. 490. That question is generally one of fact-, depending on the circumstances of the particular case. In this case, at least, it would seem that if the driver either knew, or should have known, that one of the parties intended to get upon the car, he knew, or should have known, that such was the intention of both. Still, the question was one for the jury. Exceptions sustained, and a new trial granted; costs to abide the event.  