
    Jacob Lobsenz, an Infant, by Theodore Lobsenz, his Guardian ad Litem, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — boarding a moving street car is not necessarily negligent.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, while attempting to board one of the defendant’s street cars in the city of New York, in consequence of the alleged action of one of the defendant’s servants in suddenly accelerating the speed of the car, it is error for the court to charge, “The usual invitation to us to get aboard of a public vehicle is that it stops, and in all ordinary cases to get aboard, or to attempt to get aboard, of a moving public vehicle is imprudent. This case turns upon this: Did the plaintiff act as wculd a reasonably prudent person, and did the motorman of the car act as would a prudent person at that time?” as it cannot be said, as matter of law, that an attempt to board a moving street car is a negligent or imprudent action
    Ingraham, J., dissented.
    Appeal by the plaintiff, Jacob Lobsenz, an infant, by Theodore Lobsenz, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Clifford Seasongood, for the appellant.
    
      Theodore H. Lord, for the respondent.
   Patterson, J.:

The plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of one of the defendant’s servants in prematurely increasing the speed of a car which he attempted to board on Fourth avenue, at the northerly crossing of Thirty-first street. The plaintiff testified that he signaled the motorman to stop; that the motorman put his hand to the brake, whereupon the car came almost to a standstill, or, as the plaintiff expressed it, was moving at a snail’s pace; that the plaintiff had one foot on the step of the rear platform of the car when the speed was suddenly accelerated and he was thrown to the ground and injured. There were witnesses for the defendant who flatly contradicted the plaintiff. Under McDonald v. Met. St. Ry. Co. (167 N. Y. 66) it was the duty of the court to submit the case to the jury, which was done, and they found a verdict for the defendant. From the judgment entered upon the verdict this appeal is taken.

Although many grounds of error are assigned by the appellant it is -unnecessary to consider any of them but one, and that is sufficient to reverse this judgment. This accident happened upon a street railway and the court charged the jury as follows: The usual invitation to us to get aboard of a public vehicle is that it stops, and in all ordinary cases to get aboard or to attempt to .get aboard of a moving public vehicle is imprudent. This case turns upon this: Did the plaintiff act as would a reasonably prudent person, and did the motorman of the car act as would a prudent person at that time ? ” To this an exception was taken. That in this instruction to the jury the court uses the word “ imprudent” instead of “negligent” in connection with the accident does not. relieve it from the criticism that it states a proposition of law plainly applicable in cases • of surface railroads operated by steam, as in Solomon v. Manhattan R. Co. (103 N. Y. 437) and Mearns v. Central R. R. Co. of N. J. (163 id. 108), but which does not apply to cases of street railways in cities. The trial judge stated as matter of law in all ordinary cases to get aboard or attempt to get aboard of a moving public vehicle is “imprudent,” which was used as a synonym or substituted and equivalent word for “ neglect.” This seems to be apparent from the fact that the court refused to charge that it is not always negligence, as matter of law, for a person to get upon a street car while it is in motion, so that, even if the plaintiff "boarded or attempted to board the car while in motion, the jury might still find in his favor. In Eppendorf v. Brooklyn City & Newtown R. R. Co. (69 N. Y. 195) it is said that ordinarily it is per-, fectly safe to get upon a street car moving slowly, and thousands of people do it every day with perfect safety, and it cannot be said, as matter of law, that it is always negligent for a -person to get upon a street car while in motion. Substantially the same remark is made in Moylan v. Second Ave. R. R. Co. (128 N. Y. 583) and in Kimber v. Metropolitan St. Ry. Co. (69 App. Div. 353).. In those cases the court seems to give effect to that which is patent to the observation of every one in a large city that persons frequently enter upon a street car while it is moving slowly. The act may be a negligent one or an imprudent one, but it is not necessarily so in contemplation of law. In this case the trial judge started with a proposition which was controlling of the whole case,- which was stated as a rule of law, and which, when it was proved that the plaintiff entered upon a moving car, fixed in the minds of the jury that that act in and of itself was what the law declared to be imprudent and, for the purposes of this case, a negligent act. When the case was thus sent. to the jury at the very outset of the judge’s remarks, the controlling proposition was erroneously stated and must have affected the minds of the jurors.

This was an error for which the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, McLaughlin and Laughlin, JJ., concurred; Ingraham, J., dissented.

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