
    John T. K. Walsh, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Second Department,
    June 4, 1909.
    Railroad—negligence —judgment — conformity with pleadings — injury to passenger while alighting— charge.
    Where in an action to recover for personal injuries alleged to have been caused by defendant's negligence, the only issue tendered by the pleadings is whether the car on Which plaintiff was riding stopped and then started before .he had an opportunity to alight, it is error so to charge as to lead the jury to believe that if the car was moving only slowly, they might determine whether it constituted contributory negligence for plaintiff to attempt to alight. Hieschberg, P. J., and Rich, J., dissented.
    Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 13th day of January, 1909, and also from an order denying a motion for a new trial.
    
      Francis R. Stoddard, Jr., for the appellant.
    
      Edgar J. Treacy, for the respondent.
   Woodward, J. :

The complaint in this action to recover damages for personal injuries alleges that the plaintiff,, a man seventy-five years of age, was properly upon one of defendant’s cars; that'-he signaled the conductor to stop at a certain street corner, and that the car came to a stop; that while the plaintiff was in the act of alighting, and while one foot was upon the running hoard of the car and the other - reaching for the pavement, the car was suddenly started, throwing the plaintiff to the pavement, resulting in the injuries. Plaintiff’s witnesses testified to the facts, as alleged in the complaint; that the car had come to a stop, and that it suddenly started before the plaintiff had an opportunity to reach the pavement, and -the defendant’s witnesses testified' that the plaintiff attempted to get off the car while it was still in motion, though going very slowly. There was evidence to' justify the jury in finding for the plaintiff, hut we .are of the opinion that the trial court erred in refusing the defendant’s request to charge. The court in its charge had stated generally the rtiles in reference to the defendant’s negligence, and the duty of the plaintiff to establish absence of contributory negligence, but there was nothing in the charge which called the attention of the jury to the fact that the pleadings alleged that the car had come to a standstill, and that it was started without giving the plaintiff an opportunity to alight in safety; that the only .ground of negligence asserted was the starting of the car from a standstill. At the close of the charge counsel for the defendant asked the court to charge, as it was held in (Anderson v. The Railroad Company, that if they find that the plaintiff stepped off this car while in- motion, they must find for the defendant.” Counsel for plaintiff stated that he consented, if the court would charge it this way: They are to take into consideration whether the car was moving sufficiently to make it dangerous for him to step off; if the car was moving slowly it would not be negligent to step off the car.” To this the court responded : “ Is that not covered in ray charge about his stepping off — any act for which he was to blame and the accident is caused by that he is guilty of contributory negligence.” This clearly left the jury in a position to believe that if the car was only.moving slowly, they might determine whether this constituted contributory negligence, when the only issue of negligence tendered by the pleadings was whether the car stopped and then started before the plaintiff had a chance to alight. Counsel for defendant stated that he was quoting thé Anderson case and that it held as he had requested the court to charge. The court asked : “ What is that again ? ” and counsel repeated the request: If the plaintiff' stepped off the car while in motion they cannot find a verdict for the plaintiff and must find for the defendant.” To this the court said; “ I don’t think I can charge that absolutely,” and after counsel had noted an exception the court continued: I will not charge that other than I have charged.” This refusal to charge is error; it disregards the rule that judgments should be rendered in cpnformity with the allegations and proofs of the parties, secundum allegata et probata being a fundamental rule in the administration of justice. (Wright v. Delafield, 25 N. Y. 266, 268; Furst v. Zucker, 125 App. Div. 591.) In the Wright case it is said: “Parties goto court to try the issues made by the 'pleadings,, and courts have no right impromptu to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and fairly litigated.” The only issue here was whether the car, being stopped to let the plaintiff alight, was started before he had an opportunity to do so in safety ; that was the only ground bn which the _ plaintiff claimed the right to recover, but by the court’s refusal to charge and practical; acquiescence in the attitude of plaintiff’s attorney, the j ury were permitted to give a verdict if they concluded that the car had not been stopped, but was moving only slowly, which was an issue not tendered, and upon this view the verdict might have been found upon the very evidence which the defendant submitted to defeat the recovery — to meet the issue tendered by the complaint. Direct authority for this holding may be found in Coleman v. Met. St. R. Co. (82 App. Div. 435) and authorities cited.

The judgment and order of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Burr and Miller, Jj., concurred; Hirschberg, P. J., and Bioh, J.,. dissented.

Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event. 
      
      
        See Anderson v. Third Ave. R. R. Co. (36 App. Div. 309).— [Rep.
     