
    Sadie Brown, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 18, 1909.
    Railroad — street railway—negligence — injury to passenger while alighting—evidence.
    Evidence in an "action for personal injuries alleged to have been sustained by plaintiff while alighting from one of defendant’s cars examined, and held, to support a recoveiy by plaintiff, who claimed that the accident occurred as she was alighting, although the- defendant, whose theory was that plaintiff alighted safely but fell as she was stepping from the gutter to the sidewalk, produced a greater number of witnesses.
    Jerks, J., dissented..
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Kings on the 5th day of March, 1908, upon the.verdict of a jury for $500, and also from an order entered in said clerk’s office on the 2d. day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      G. W. Plitt, for the respondent.
   Hirschberg, P. J.:

The plaintiff has recovered a small judgment for damages alleged to have been sustained while alighting from one of the defendant’s trolley cars in the borough of Brooklyn. "The only point presented by the appellant is that the 'verdict is against the weight of evidence. The defendant may have produced more witnesses than the plaintiff, but a critical analysis of the testimony demonstrates the fact that the real weight supports the recovery.

The accident occurred while the plaintiff was alighting from a car which the conductor had stopped for that purpose. She claims that while she was in the act of alighting the car suddenly" started and she was thrown to the ground. The theory of the defense was . that she alighted in safety; that she proceeded on the crosswalk to the sidewalk, and that in the act of stepping up from the gutter to the sidewalk she fell, from some cansé undisclosed, and thereby sustained the injuries of which she complains. The only witness who testifies directly to the theory of the defense is the conductor, and he admits that he was not looking at her'at the time. On the other hand several witnesses testified to facts which indicate that the accident occurred at the car and not on the sidewalk; that the plaintiff fell at the place where she alighted and under circumstances which tend in some degree at least to corroborate her version of the occurrence.

The atmosphere of the case is indicative of an accident occasioned in the act of alighting. The conductor took the names of some of the passengers on the car in order that they might be produced as witnesses. The motorman testified that his attention was called to the accident as soon as it occurred, and that, looking around, he saw the plaintiff on the street with the conductor and realized that there was something the matter. Two or three witnesse who were passengers testified, that their attention was attracted by a “ hubbub ” outside the car, and that they noticed that a lady had fallen; and an attorney at law, employed by the company, and who chanced to be on the car, testified that after the plaintiff had fallen he went to her, gave her his card and told her that if she had a grievance against the company she should present it to the claim department. He does not say that he went over to the sidewalk to do this, and it would be'difficult to imagine his doing so had the lady fallen on the sidewalk. All this is, inconsistent with the claim asserted by the defendant on the trial that the accident occurred upon the sidewalk after the plaintiff had safely alighted and when, in that event, the car. would have proceeded without further notice.

The judgment and order should be affirmed.

Woodward, Gavnor and Hiller, JJ., concurred; Jenks, J., dissented.

Judgment and order affirmed, with'costs.  