
    Leonard C. Butler, Respondent, v. New York City Railway Company, Appellant.
    Second Department,
    December, 1905.
    Negligence—error in charging that plaintiff was free from contributory ,' . - negligence.
    When plaintiff, a passenger inA crowded street car, was injured by the sudden starting thereof at a time when he did not have, hold of a strap, and testifies that none was available where he-was standing, it.is error,to charge that there is ño question of contributory negligence on his "part, and that he has shown himself .free therefrom. It is.á question for the. jury.
    'Appeal by the defendant, the New York City Bailway Company, from an order of the Municipal Court of the-city of New York, borough of Brooklyn,- entered in the office of the clerk of said -court on the 12th day of December, 1904, denying the defendant’s motion to set aside a" verdict rendered in favor of the plaintiff on the 22d day of November, 1904, and for a-new trial of the action.
    
      William E. Weaver, for the appellant.
    
      Walter H. Dodd, for the respondent.
   Miller, J.:

The plaintiff .has recovered a judgment in the Municipal Court for personal injuries alleged to have been sustained as a.result of the defendant’s negligence^ ■ Plaintiff’s claim is that while he was-standing in the aisle of a crowded street car, the sudden starting of the car threw .the' people in front of him against him with sufficient . force to produce a-fall from which the injuries complained of are alleged.to have resulted, The ear Was somewhat crowded when the plaintiff boarded it! The plaintiff did not have hold of a strap, but he testified that there was none available at the place where he was standing. The court charged the jury, “ I charge that there is no question of contributory negligence in the case, that the plaintiff has shown himself free.from contributory negligence,” and the respondent seeks to sustain this charge by cases which hold that it is not contributory negligence as a matter of law to board anrowd-ed street, car and occupy a position such as thé plaintiff Oc.cupied when .injured, but these cases are beside the question here. The inferences to be drawn from the evidence, as well as the credibility of the plaintiff, were for the jury, and while the plaintiff may not have been guilty of negligence as matter of law, it is obvious that it was error to charge as matter of law that he was not guilty of negligence, for which reason the judgment and order must be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  