
    Samuel Wimpleberg, Respondent, v. Yonkers Railroad Company, Appellant.
    
      Contributoi'y negligence— lohen the'questions of freedom from, and guilt of, con-1/ributory negligence must be submitted to the jury.
    
    In an action to recover damages for personal injuries, sustained by the plaintiff through the alleged negligence of the defendant, the plaintiff is entitled to have the issue of his contributory negligence submitted to the jury, if there is any evidence, however slight, from which the jury may infer that he was free from such negligence; and, by parity of reasoning, the defendant is entitled to have such issue submitted to the jury whenever there is any evidence from which the jury may infer that the plaintiff was guilty of contributory negligence.
    Appeal by the defendant, the Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 15th day of September, 1902, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 6th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur Ofner [Charles F. Brown with him on the brief], for the appellant.
    
      John F. Brennan, for the respondent.
   Goodrich, P. J.:

The plaintiff sues for damages occasioned by his fall from a car of the defendant on which he was a passenger. There was evidence sufficient to show that, as he was about to alight, the car, which had stopped, started, with a sudden jerk, throwing him down. The answer was a general denial and an allegation of the plaintiff’s contributory negligence. Defendant denied that any such accident had occurred and produced all its employees in charge of the cars at the time and locality in question and also a police officer stationed at that place, and none of them had seen or heard of any accident to the plaintiff. From the verdict in favor of the plaintiff, the defendant appeals.

The court instructed the jury that The method or way in which the accident is stated to have occurred, upon the theory of the plaintiff, is not combatted by the defendant at all. * * * The defendant does not attempt to account for the accident at all. -x- -x * if y0U decide, however, that the accident did happen, and that Dr. Wimpleberg was thrown on the ground and hurt, practically as he and his corroborating witnesses have described, without fault on his part, then you will consider the question as to what damages,” etc.

Defendant’s counsel requested the court to charge: “ That the testimony shows that the plaintiff did not observe proper precautions when the car was approaching, or at the corner of Central avenue and Yonkers avenue, and that the jury may find from such testimony that the plaintiff was guilty of contributory negligence, and may, therefore, find a verdict for the defendant. (The Court) I decline to charge that. There is no contest over the manner in which the accident happened. It either happened substantially as described by the plaintiff and his witnesses, or it didn’t happen at all. There is no contest over contributory negligence, although if guilty of it he cannot recover. [Defendant’s counsel excepts to the court’s refusal to charge as requested, and to that part of the modification where you say there was either an accident substantially as alleged by the plaintiff or there was no accident at all.] ” He also excepted to all and every part of your charge, and your taking from the jury the question as to whether or not the plaintiff was guilty of contributory negligence.”

The refusal to charge the defendant’s request and the-charge on this subject constitute a ruling by the court that the plaintiff was not guilty of contributory negligence. In actions of this nature the trend of modern authority is to require the submission of the question of a plaintiff’s contributory negligence to the jury, whenever there is any evidence, however slight, from which the jury might infer that the plaintiff was free from such negligence. This is for the benefit of a plaintiff. By parity of reasoning a defendant should have the right to have the question of the plaintiff’s contributory negligence submitted to the jury whenever there is evidence, slight though it may be, from which the jury might infer that the plaintiff was guilty of contributory negligence. In the present case, the jury could have believed a part and rejected a part of the ¡plaintiff’s testimony, as he was a party in interest; and so also they could have rejected a part of the testimony of any other witness because inconsistent with the evidence of the defendant’s witnesses, that no such accident occurred. The jury might have inferred from the defendant’s evidence, though it was of a negative character, that the story of the accident was made out of whole cloth, and that no accident had occurred to the plaintiff in the manner stated by his witnesses, either through any negligence of the defendant or without contributory negligence, on the part of the plaintiff.

It was, therefore, error for the court to take from the jury the question whether the plaintiff had established his freedom from contributory negligence.

The judgment and order should be reversed.

Bartlett, Woodward, Hirsciiberg and Jenks, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  