
    Thomas J. Cunningham, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — charge, where a plaintiff has placed, himself in a position of danger, that “ it would not necessarily excuse the subsequent negligence of the defendant ” — refusal to charge where the motorman was conced.ed.ly not at fault.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff, for the purpose of taking one of the defendant’s cars, stationed himself in the space between two street car tracks, which space was five feet eight inches wide; that while thus standing a third party boarded one of the defendant’s cars and that as the car proceeded he came in contact with the plaintiff, throwing the latter down and injuring- him. The plaintiff’s theory was that the car was stationary when the third party boarded it and that the conductor of the car had given the starting signal before the third party had an opportunity to pass inside. The defendant’s theory was that the third party attempted to board the car while it was moving.
    
      Held, that it was improper for the court to charge that “Even if the plaintiff, in ■ placing himself where he did to wait for an approaching car, failed to exercise reasonable care for his own safety, yet. if the defendant's conductor was aware of the plaintiff’s position before he signaled the car to start and could have avoided the accident by the exercise of reasonable prudence and care, then the original negligence of the plaintiff in placing himself where he did would not necessarily excuse the subsequent negligence of the defendant, if any, and would not preclude a recovery by the plaintiff in this action; ”
    That such charge entirely withdrew from the jury the question of the plaintiff’s contributory negligence which was one of fact for them to consider;
    That, there being nothing in the evidence which justified a finding that the motorman of the chr was negligent, it was improper for the court to refuse to charge as follows: “The defendant cannot be held liable in this case, because the motorman of the car did not reverse the power after the accident, but relied upon his brakes after the power had been turned off to stop the car.”
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 5th day of April, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 30th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Howard C. Sherwood, for the respondent.
   McLaughlin, J.:

On the morning of the 6th of September, 1900, for the purpose, of taking one. of the'defendant’s Fourth avenue cars at the intersection of the Bowery and Spring streét, the plaintiff with three1 companions stood between the uptown Third avenue and the uptown Second and Fourth avenue tracks (the Second and Fourth avenue cars run' On the same tracks at this point) waiting until the same came along. .While in this' position the plaintiff’was struck by a person attempting to board a Second avenue car, thrown .'down, partly under the car, one of the wheels- passing over a- portion of his foot inflicting a serious injury. This action was brought to recover the damages sustained, upon, the ground that, the defendant was negligent in starting the Secpnd avenue car while the person attempting to board it was in such a' position as to injure the plaintiff.

The plaintiff’s evidence tended to show th'at while, standing in; the position named a Third avenue car came along and stopped immediately behind them; that a little in the rear of that on the other track a Second avenue car stopped ; that about that time one Boyle came from the east side -of the Bowery, passed around the Third avenue car and attempted' to board -'the Second avenue car; that while he had hold of the stanchion with one hand and1 one foot on" the running board the conductor gave the signal for the car to go ahead; that it started suddenly.and Boyle was swung around in such a way that his bod'y came in contact with the plaintiff with such force that he was thrown down and .under the car.' On the part of the, defendant evidence was offered which tended to show that the Third avenue car had. either passed or was .passing, the plaintiff and that he had. indicated he did not desire to take the ■ Second avenue car; that it thereupon was-started and was in motion when. Boyle attempted to ‘board it. There Was thus presented a sharp conflict of evidence at the conclusion of the trial as to whether B.oyle attempted to board the car after it had started or whether the conductor gave the signal and- the 'car was in fact started after he had commenced,. but before he had finally succeeded in getting aboard. The plaintiff had' a recovery' and the defendant appeals..

I am of the opinion that the judgment must be reversed for an error in the charge.. The plaintiff, of"' course, was not entitled to recover if his own negligence contributed in any way to his injuries. The distance between the Third avenue tracks and those of the Second and Fourth avenue was five feet eight inches. Taking this into consideration, and the fact that the plaintiff had voluntarily placed himself between these tracks, in süch a position that it was possible for him to be thrown down in the way in which he was, made his own negligence a question for the jury, and this the court practically took from it in the following charge, to which an exception was taken ; “ Even if the plaintiff, in placing himself where he did to wait for an approaching car, failed to exercise reasonable care for his own safety, yet if the defendant’s conductor was aware of the plaintiff’s position before he signaled the car to start and could have avoided the accident by the exercise of reasonable prudence and care, then the original negligence of the plaintiff in placing himself where he did would not necessarily excuse the subsequent negligence of the defendant, if any, and would not preclude a recovery by the plaintiff in this action.” This charge was equivalent to saying to the jury that if they found the plaintiff was guilty of contributory negligence, nevertheless he could recover if the conductor of the car could have prevented the accident by the exercise of reasonable care on his part. It withdrew entirely from the jury the question of contributory negligence of the plaintiff, which the evidence did not justify. It was an incorrect statement as to the law, and the jury must have been misled by it. (Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139.) This court has many times pointed out the error in similar instructions. . (McDonald v. Metropolitan St. R. Co., 93 App. Div. 238; Trauber v. Third Avenue R. R. Co., 80 id. 37; Bortz v. Dry Dock, E. B. & B. R. R. Co., 78 id; 386 ; Delkowsky v. Dry Dock, E. B. & B. R. R. Co., Id. 632; Sciurba v. Metropolitan St. R. Co., 73 id. 170; Csatlos v. Metropolitan St. R. Co., 70 id. 606; Goodman v. Metropolitan St. R. Co., 63 id. 84.)

I think, also, the court erred in refusing to charge the following request made by the defendant; “ The defendant cannot be held liable in this case, because the motorman of the car did not reverse the power after the accident, but relied upon his brakes after the power had been turned off to stop the car.” There was nothing in the evidence to justify a finding that the motorman was negligent, and this seems.to have been appreciated by the plaintiff’s counsel,, inasmuch as he took no exception to the instructions given by- the court in the main charge, that “ the only person in the employment of the defendant charged with, negligence in this case is .the conductor.” If this were true, then the defendant, clearly, was entitled to have the instruction given as requested.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred. ‘

Judgment and order reversed, new trial ordered, costs to appellant to abide event. . . .  