
    (49 Misc. Rep. 647)
    GOLDSTEIN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    February 27, 1906.)
    Carriers — Injury to Passenger — Action—Variance.
    In an action against a street railway company for injuries to a passenger, in which plaintiff alleged negligence in starting the car after it had been stopped and after plaintiff had started to alight, plaintiff was not entitled to recover if the car was moving at all, no matter how slowly, when she tried to get off.
    
      Appeal from City Court of New York, Trial Term.
    Action by Sarah Goldstein against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Argued before SCOTT, P. J., and GIEGERICH and GREENBACK, JJ.
    Bayard H. Ames, for appellant.
    Bennett E. Siegelstein, for respondent.
   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 he 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.” The court declined to charge as requested, and added: “It is a question for you to determine if the car was moving so slowly that the plaintiff could have gotten off without any accident happening, you have a right to consider that.”

The instructions of the court as above quoted constituted reversible error. Coleman v. Metropolitan St. Ry. Co., 82 App. Div. 435, 81 N. Y. Supp. 836. The action was not brought upon the theory that the plaintiff stepped from a moving car under such circumstances which would absolve her frpm 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 be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.  