
    ELIZABETH DECKER, Resp’t, v. THE MANHATTAN RAILWAY COMPANY, App’lt.
    Negligence—Railroad—When guilty or.
    Appeal from judgment entered in favor of the plaintiff upon verdict of a jury and from order denying motion for new trial.
    
      Howard Townsend, for app’lt; James A. Patrick, for resp’t.
   Van Brunt, P. J.

The plaintiff claimed damages for an injury sustained as she was hoarding a train of the defendants

She claimed that the train was standing still with the gates open, and as she attempted to enter without any warning to her, the train started and threw her down inflicting severe injuries.

The defendants, upon the other hand, claim that the plaintiff attempted to board the train after the gates had been closed and the train had started.

The points suggested upon this appeal are that the verdict is against the weight of evidence and that the learned court erred in its charge to the jury.

It may be true that the plai :tiff’s story is only supported by her own evidence and that she is contradicted by numerous witnesses upon the part of the defendants, but this forms no ground for setting aside the verdict for the reasons stated in the case of Hickinbottom v. Delaware and Lackawanna R. R. Co. (N. Y. State Rep.), recently decided by this court. The learned justice who presided at this trial, in a remarkably clear and lucid charge, presented the question at issue in such a manner that the jury must have plainly understood the necessities of the plaintiff’s case, and the verdict in favor of the plaintiff did not seem to him to be so far against the justice of the case as to require his intervention by granting the motion to set the same aside.

If the motion had been granted such ruling would probably have been susstained because the granting of such a motion shows that the judge presiding is of the opinion that the verdict has been brought about by improper causes and is not the result of a simple consideration of the evidence and the rules laid down by the court for its application and should not, therefore, be allowed to stand.

In the case at bar there was a sharp conflict, and unless something had occurred during the trial, showing with reasonable certainty that the plaintiff was unworthy of credit, the question was one for the jury.

The objection taken to the learned judge’s charge is not well founded.

His charge was strictly correct that in the case of steam railroads the utmost care must be used in the carrying of its passengers.

It may he true that this rule had no application to the case at bar because the accident did not happen while the defendant was carrying the plaintiff as a passenger, but the stating of the rule in correct language in no way prejudiced the defendant

The jury, subsequent to this time, were told over and over again with great distinctness that if the plaintiff attempted to board this train while the gates were shut or the train in motion she could not recover.

The very last directions that the learned court gave to the jury were that they must find these two questions in favor of the plaintiff by a preponderance of evidence

First That the defendant was negligent that it did leave this gate open and invited her to enter, and just as she was about to enter the train started before she had an opportunity to get on hoard.

“Secondly. That she was careful that she did nothing that an ordinary prudent person would not do under like circumstances, or in after words that the train had not started when she attempted to get on.”

Thus was clearly left to the jury, without any chance for misapprehension, the only questions involved.

The judgment and order appealed from should be affirmed, with costs.

Bartlett and Daniels, JJ., concur.  