
    William F. Fay, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence—standing a st/reet car while a passenger has hold of the upright rail — act of the passenger in holding onto the can• until he falls in a hole.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff desired to board one of the defendant’s street cars, and that as the car came to a stop he took hold of the upright rail, and that as he was about to step aboard, the car suddenly started and that he held onto the rail while the car proceeded several feet, when he fell into a trench which had been excavated near the track.
    
      Held, that it was error to dismiss the complaint;
    That the questions whether the defendant was negligent in suddenly starting the car and whether the plaintiff was guilty of contributory negligence in holding onto the car should have been submitted to the jury.
    Appeal by the plaintiff, William F. Fay, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New* York on the léth day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 16th day of February, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Gilbert D. Lamb, for the appellant.
    
      Ghat'les F. Brown, for the respondent.
   Ingraham, J.:

The plaintiff, a passenger upon one of the defendant’s cars, the terminus of which was Astor place and Broadway, received a transfer entitling him to continue his trip downtown in a Broadway car. He crossed Broadway to the lower crosswalk and waited for a car. There were several people ahead of him waiting to board the car, and as the car came to a stop he took hold of the upright rail to be ready to step upon the car when the people in front had got on, and he testified : “ As they got on I went to step around and the car gave a sudden jerk, and I was afraid I would fall. I was ready with my left foot getting on, so 1 went with the car, and there was some projection sticking out, and there was a hole down below that I did not see, so in the force of the run with the car I let go of the car, intending to turn towards the sidewalk, and I pitched into the hole.” On cross-examination he said : “ I did not get on board of the car at all. Before I got my foot upon the step the car started. I ran along with the car. I could not at the moment say exactly how far I ran — not far, though. * * * I ran along with the car for some distance. I didn’t let go, because I was afraid of falling. I did -finally let go.” He was corroborated by a witness who saw the accident, who testified : “ Well, I saw Mr. Fay standing behind three or four other gentlemen getting on the car, and he was waiting his turn to get on the car, and, as he was about to step on the car, she shot off, as I'thought, at the full rate of speed, and it half dragged and he half ran with the car, and, finally, it seemed to me, he let go from exhaustion and he fell into the trench,” and on cross-examination this witness testified : “ As to how far below As'tor Place was it that this trench begun, I should judge it was about three feet. I didn’t make no exact measurements ;• I just judged. * * * As to how. far was that point where I picked him out of the trench from the point where he was waiting for the car, I should judge about four feet and a half or five feet. I wouldn’t exactly say; it may have been six. Not over six, anyhow. * * * When I saw him he merely had one hand — hold with one hand — on.the dashboard rail—the rear rail. He did not have plenty of time to let go if he wanted to, not at that time; not very well. He didn’t have either foot on the car.”

I think a dismissal of this complaint, was error. Thé defendant was bound to give the plaintiff a reasonable time to board the car, and the evidence would have justified finding that the defendant was negligent in that respect, nor do I think that the plaintiff was ns a matter of law guilty of contributory negligence. Having hold of the car about to board it, when the car suddenly started, there was presented an emergency which required the exercise of judgment as to the best course to avoid being injured. If to avoid being thrown down by the sudden starting of the car, he held onto the ear to steady himself until he could let go in safety, it was certainly not negligence as a matter of law. But for the existence of this trench in the roadway alongside of the track which lie had not observed, he would probably have escaped injury by adopting the course that he did; but his falling into the trench was caused by his being dragged along by the car. It seems to me that the question of contributory negligence was one for the jury. There can be no doubt but that the starting of the car was the proximate cause of the injury. If the car had not started, the plaintiff could have get aboard in safety. It, however, started when he had hold of the car, and the sudden starting of the car carried him along with it, and if he, to avoid falling, kept hold of the car until he could regain his equilibrium and in so doing was by the momentum of the car thrown into this trench, it was the sudden starting of the car and the motion contributed by the car to the plaintiff which caused him to fall into the hole from which he sustained the injury for which he seeks to recover. But for the momentum caused by the starting of the car the plaintiff would not have been thrown into the trench and would not have been injured.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, Hatch and Laughlin, JJ., concurred.

Judgment revérsed, new trial ordered, costs to appellant to abide event.  