
    Henrietta Brettner, Respondent, v. The Westchester Electric Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Carriers — Carriage of passengers — Liability for personal injuries to passengers — Duties with regard to taking on passengers — Duty to passenger while in transit to seat.
    Where, in an action to recover for personal'injuries sustained by a passenger in attempting to board an open, car, all the conditions appear to have been such as to have justified plaintiff in assuming that she might safely board the car, and where it appears that, before she was seated, the conductor in charge, without warning, lowered the board rail so that it injured her hand which she had placed on one of the upright stanchions while in the act of taking her seat, the defendant’s alleged negligence and the plaintiff’s freedom from contributory negligence are properly questions of fact for. the court sitting as a jury to pass upon; and, defendant having submitted no proof as to the details of the accident, the judgment for plaintiff will not be disturbed.
    Appeal by the defendant from.a judgment in favor of the plaintiff rendered in .the Municipal Court of the city of Mew York, ninth district, borough of Manhattan.
    William E. Weaver, for appellant.
    Max Sheinart, for respondent.
   Greenbaum, J.

It seems to me that this case is distinguishable from Clark v. Metropolitan Street Railway Company, 68 App. Div. 49. In the latter case the plaintiff attempted to board the defendant’s open car, before the step had been' lowered, and it there also appeared that “ he knew that the step had to he lowered before the car could proceed up town ” and that “he assumed that it had been lowered because the bar was raised, but there was nothing to justify that assumption ”. In the case at bar, the testimony of plaintiff was that, when the car reached the station and when she attempted to board the car, the upper crossbar was up and the step of the car was down; that the side on which she boarded the ear was on the track nearest to the building where she and other passengers were waiting for the car; that the other side of the car was next to another track upon which were cars; that other passengers were boarding the car, without objection on the part of the car officials, on the same side that she was getting on; that the rail was down on the other side and that she did not know, nor does she now believe, that she was getting on the car on the wrong side.

The accident happened at what is known as the Mount Vernon Transfer Station, in a car bound for Mew Rochelle. It was not shown that plaintiff had any familiarity with cars at this point and, indeed, no evidence was introduced tending to show that it was not entirely proper to board the car on the side where plaintiff was injured.

Where all the conditions are such as to justify a passenger in assuming that she may safely board a car, where no warning is given by the officials and where, before a passenger is fully seated, the conductor in charge, without warning, lowers the upper rail so that it injures a passenger who has her hand on one of the upright stanchions while in the act of taking a seat, the questions of defendant’s negligence and plaintiff’s freedom from negligence were properly questions of fact for the court, sitting as a jury, to pass upon.

Defendant submitted no proof as to the details of the accident and no good reason exists for disturbing the judgment.

Scott and Giegebich, JJ., concur.

Judgment affirmed, with costs and disbursements to respondent. .  