
    Mary O’Brien, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    December, 1905.
    Negligence — injury by starting of train while plaintiff crossing platform — when no contributory negligence, as matter of law.
    When there is evidence that the plaintiff, on alighting from defendant’s car was confronted by another train of the defendant which blocked her way, and that she was told by the conductor thereof to cross the platform of such train, which started as she was descending from said platform, whereby she was thrown and injured, it is error to dismiss the complaint on the ground that as a matter of law she was guilty of contributory negligence.
    Appeal by the plaintiff, Mary O’Brien, from a judgment of the County Court of Kings county in favor,of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of July, 1904, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.
    
      Edmund Fletcher Driggs, for the appellant.
    
      I. R. Oeland [ George D. Yeomans with him on the brief], for the respondent.
   Hirschberg, P. J.:

The court refused to dismiss the complaint at the close of .the plaintiff’s case, but granted a motion to dismiss at the close of the case on both sides, saying: It appears upon the evidence in this case that the plaintiff ■ attempted to alight from the train while it was in motion and in doing so contributed-to the accident.”

The circumstances are peculiar, but it certainly cannot be said that the plaintiff was guilty of contributory negligence as matter of law. She had gone to Brighton Beach from Brooklyn on one of the defendant’s trolley cars and on alighting on the platform at the beach, directly opposite the Brighton Beach gate, found one of the elevated trains of the defendant blocking the way. It consisted of four cars, and she was standing opposite the middle of the train. She waited awhile for the train to pass, and during that period three other passengers on the trolley car crossed the train by going up the steps of one of the cars, over- the platform and down the other side. She testified that the conductor of the train was standing on the ground on the side of the train opposite her and' called to her to “ come aheadwhereupon she started to cross the train, but as she was about to descend' on the far side the train was suddenly started so as to throw her. to the ground, inflicting the injuries of which she complains. Her sister was with her at the time and crossed the train- safely just ahead of her and by her testimony corroborated the plaintiff’s version of the occurrence.

The conductor admitted that he saw the plaintiff and. her sister get .on the train and that hé gave the-signal to the motorman to start the train, but he denied that he invited them or either of them to come across. He testified : “ I seen nobody but these two young ladies get- on board, so I thought they were passengers on the middle of the platform, so I gave my signal to the motorman to go" ahead when they were on the platform. In. the meantime one stepped down and the other rushed to get down. * * * Both were on" the platform, one on the third step and the other behind her. I signalled him to go ahead, in the meantime one kind of stepped off and the other—the train started the least bit and the other she fell off and she fell on her hands and knees.”

Taking all the- evidence together, it is quite obvious that the jury might have concluded that the defendant had invited the plaintiff to cross the train which was blocking her path and had started the train to her injury while she was in the act of doing só. For any damages occasioned in that manner the defendant would certainly be liable. The question was one of-fact. In the casé of Sheridan v. Baltimore & O. R. Co. (60 Atl. Rep. 280) it was held that, in an action for injuries sustained by plaintiff, owing to the starting of- a train while he was attempting to cross by getting upon the bumpers between cars on a statement of the brakeman that there was .plenty of time, the question of contributory negligence was for the jury. Here the case is-much stronger-for the plaintiff inasmuch as it might be found on all the evidence that- the plaintiff was assured by the employee in charge of the train that it- was .safé to attempt to cross it, and that the train was set in motion, by the act of that employee while she was acting in his presence upon such assurance of safety.

The judgment should be reversed.

Bartlett, Woodward, Jenks and Rich, JJ., concurred.

Judgment of the Gounty Court of Kings county reversed and new trial ordered, costs to abide the event.  