
    Francis Ferris, Respondent, v. Interurban Street Railway Company, Appellant.
    
      Negligence—charge that a railway company is not liable to a passenger who attempts to board a car after a signal has been given to start it, held to have been properly refused.
    
    In an action brought to recover damages for personal injuries the plaintiff gave evidence tending to show that, while she stood on the lower step of the defendant’s car attempting to board it, the conductor commanded her to take another car and at-the same time shoved her so that she fell against the dashboard and received injuries.
    The car was standing still, but the conductor testified that he had previously given the signal to start, and that,' for some undisclosed reason, the motorman had not responded thereto. The car was not full and there was nothing in the appearance of things which would indicate to the plaintiff that she would not be received as a passenger.
    
      Held, that the court properly refused to charge the jury “ that if they find that she tried to board the car after the conductor had given the signal and just before the car started in response to that signal, why then the defendant is not liable, and their verdict must be for the defendant.”
    Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on "the 24th day of February, 1903, upon the verdict of a jury.
    
      William E. Weaver, for the appellant.
    
      William Bondy, for the respondent.
   Hirsghberg, J. :

The appellant presents but one point for the consideration of the court, claiming that there was error involved in a refusal to charge the jury as requested.

The plaintiff was attempting to hoard one of the defendant’s cars •on Twenty-third street, at the East river ferry, in the borough of Manhattan. The car was standing still, but the conductor testified that he had given the signal to start, to which, for some reason, the motorman had not responded. The car was not full, and there was nothing in the appearance of things as presented to the plaintiff to indicate that she would not be received upon it as a passenger. As she stood on the lower step in the process of entering the car, the conductor, according to her story, commanded! her to take another car, and at the same time shoved her so that she fell against the dashboard and received injuries, for which she has recovered the judgment appealed from.

The court was requested on the defendant’s behalf to charge the jury “ that if they find that she tried to board the car after the conductor had given the signal and just before the car started in response to that signal, why then the defendant is not liable, and their verdict must be for the defendant.” The request does not embody any recognized rule of law, and was properly refused. It takes no note of the question of the plaintiff’s knowledge or means of knowledge of the fact that a signal had been given to start the car, nor does it include any suggestion bearing even remotely upon the consideration of the plaintiff’s possible negligence. As an abstract proposition of law it asserts that there can be no liability for. an assault upon the person of a passenger, or for any other act 'of negligence, if the passenger boards the car while apparently invited to do so but after a signal had in fact been given to start the car, but given without his knowledge and without effect. In other words, freedom from liability is predicated absolutely upon the fact of the signal, and wholly independent of all the surrounding facts and circumstances. A statement of the alleged proposition of law included in the request seems a sufficient refutation of its accuracy and soundness. ' .

The judgment should be affirmed.

Present—Babtlett, Woodwabd, Jenks and Hooker, JJ.

Judgment of the Municipal Court unanimously affirmed, with costs.  