
    Kristn Olson, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 22, 1909.
    Trial — negligence — injury while alighting from street car — charge.
    It is not error to charge that a plaintiff who was injured while alighting from a street car is entitled to recover if the car. having stopped on her signal, started up again while she was endeavoring to alight, even though it he not stated that the car must have been negligently started if the only issue involved is as to whether the car having stopped to let her off started up while she was alighting. -
    Jenics and Miller, JJ., dissented.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of ¡November, 1908, upon the verdict of" a jury for $700, and also from an order entered in said clerk’s office on the 18th' day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    ■ D. A.. Marsh \_George I). Yeomans with him on the brief],-for the appellant.
    
      John M. Wellbrock [J. Arthur Hilton and Arthur J. Levine with him on the brief], for the respondent.
   Gaynor, J.:

The plaintiff claimed, and produced testimony to show, that the car stopped on her signal to let her off, and that as she was stepping down it was started up and threw her off. The defendant claimed, and produced testimony, that the plaintiff stepped off the car before it had stopped at all, and that she was hurt in that way. The question litigated was whether the car stopped before she stepped off. The trial Judge charged that “ If the car stopped and the lady attempted to alight — if the car stopped on her signal and she endeavored to alight, and, as she was stepping down, the car started up again, then she. would be entitled to recover ”. It is claimed that this took from the jury the question whether the car was negligently started.

The question- is a troublesome one under the- decisions (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309; Woods v. N. Y. & Q. Co. R. Co., 128 App. Div. 235). ' But, really, was it error in this case to omit the word negligently ?• If the car stopped to let her off, was it not negligent as matter of law to start- it while she was in the act of stepping down ? , It seems to me it was. The case is. distinguishable from those cited, in that it comes down to the precise point whether the car started up while the plaintiff was stepping down, after having stopped to let her off. If some other question entered into the case, the charge might have been erroneous. Ho fact was shown on which a finding that the starting Was not premature and-negligent could rest, assuming that the ear was stopped to let lief off. ■ The judgment should be affirmed. .

Woodward, JV, concurred; Burr, J., concurred in the result; Jenks and Miller, JJ., dissented.

Judgment and order affirmed, with costs.  