
    KUHMAN v. METROPOLITAN ST. RY. CO.
    (City Court of New York,
    General Term.
    November 16, 1899.)
    Street Railroads — Contributory Negligence — Question for Jury—Instruction.
    Where there was some evidence that a street car was moving slowly when plaintiff attempted to get off, a charge that if the car was “in motion,” without distinguishing between rapid and slow motion, plaintiff could not recover, was properly refused.
    Appeal from trial term.
    Action by Karl Kuhman against the Metropolitan Street-Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before FITZSIMONS, C. J., and MCCARTHY, J.
    
      H. A. Robinson and J T. Little, Jr., for appellant.
    Otto Kempner, for respondent.
   FITZSIMONS, C. J.

The only material point presented by this

appeal is the refusal to charge the request made by the defendant’s .counsel that, “if the jury believe that the defendant’s car was in motion at the time the plaintiff attempted to get off, the verdict must be for the defendant.” The request does not distinguish between rapid and slow motion. The court charged: “In this case it is for you to' say whether the act of the plaintiff in attempting to get off the car at the time of the accident was negligence.” At least one of the defendant’s witnesses swears the car was moving slowly. The court’s refusal to charge was not error, under Kelly v. Railroad Co., 25 App. Div., at page 604, 50 N. Y. Supp. 426, but seems warranted by that case. See, also, Filer v. Railroad Co., 49 N. Y. 47.

Judgment and order affirmed, with costs.

McCARTHY, j., concurs.  