
    NATHAN v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    December 7, 1904.)
    1. Street Railroads—Injuries to Passengers—Time to Board Car—Negligence.
    Where a street car slowed down as it approached plaintiff, in response to a signal, and plaintiff attempted to step on the rail platform while the car was in motion, and was thrown down and injured by a sudden acceleration of speed, plaintiff was not entitled to recover in the absence of proof that the motorman had actual notice that plaintiff was in the act of boarding the car, or that the place where he attempted to board it was a usual stopping place.
    H1. See Carriers, vol. 9, Cent. Dig. § 1161.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Adolph Nathan against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and BISCHOFF and GIL■DERSEEEVE, JJ.
    Grauer & Rathkopf, for appellant.
    Henry W. Goddard and Wm. E. Weaver, for respondent.
   BISCHOFF, J.

The plaintiff attempted to board a south-bound car on Madison avenue, at Seventy-Ninth street, standing, as it approached, 10 feet north of the northerly cross-walk, from which point he signaled the motorman to stop. The car slowed as it approached him, and he attempted to step upon the rear platform while the car was thus in motion; but its speed was then suddenly accelerated, with the result that he was thrown.

The dismissal of the complaint for failure of proof of the de-. fendant’s negligence is supported by the authority upon which the justice based his ruling. Monroe v. Met. St. Ry. Co., 79 App. Div. 587, 80 N. Y. Supp. 177. In that case it was held that the motorman was not chargeable with neglect of reasonable care in increasing the car’s speed as it passed the intending passenger, and before it actually stopped, although slowing at his signal when it approached him, unless actual notice that the passenger was in the act of boarding the moving car were shown to have been received. Possibly the case might be distinguished, if the plaintiff had attempted to board the moving car as the rear platform came opposite to him, with the speed lessened at his signal, at a usual place of stoppage, as in Clinton v. R. Co., 91 App. Div. 374, 86 N. Y. Supp. 932; hut there was no proof of any custom or of a city ordinance which made a point 10 feet north of a northerly crosswalk the proper place for boarding a south-bound car.

Judgment affirmed, with costs. All concur.  