
    (56 Misc. Rep. 599.)
    MITTLEMAN v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    November 29, 1907.)
    1. Judgment—On Motion to Dismiss.
    Where defendant moves for dismissal for failure of proof, It is error to render judgment for him on the merits.
    LEd. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 359.}
    
      2. Street Railroads—Injury to Person Near Tracks—Negligence.
    Plaintiff, in crossing a street where a street car track made a sharp curve, at the side of which, about two feet from the track, was an unguarded excavation, after crossing the tracks, was compelled to pass be- . tween the excavation and the tracks. As she, with others, was about to cross, a ear approaching the curve was stopped by a policeman to enable them to pass. Plaintiff, who was the last to cross, had passed the front end of the car, when it started, and she was struck by the rear fender as the car rounded the curve and thrown into the excavation. Held, that the motorman was guilty of negligence in starting the car before plaintiff had an opportunity to reach a place of safety.
    [Ed. Note.—For cases in point, see Cent Dig. vol. 44, Street Railroads, §§ 195-203.} .
    
      3. Same—Contributory Negligence—Passing in Front of Standing Car.
    A person crossing in front of a street car while at a standstill has a right to assume that it will not be started or so operated as to strike her until she has had a reasonable opportunity to pass the point of danger.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§' 20A-209.]
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by Gussie Mittleman against the New York City Railway; Company. Judgment for defendant, and plaintiff appeals. Reversed,, and new trial ordered.
    Argued before GIRDERSREEVE, P. J., and REVENTRITT and ERRANGER, JJ.
    Reopold Freiman, for appellant.
    William E. Weaver, for respondent.
   LEVENTRITT, J.

The plaintiff sues to recover for personal injuries received through the alleged negligence of the defendant. _ At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint upon the grounds that no negligence on its part had been shown and that the plaintiff had not established her freedom from contributory negligence. The court reserved decision, whereupon the defendant’s counsel stated: “I will rest on my motion.” No testimony was offered by the defendant. Subsequently the court rendered judgment for the defendant upon the merits. This was error. The defendant, having moved for a dismissal for failure of proof, was entitled at most to a judgment of nonsuit. Peggo v. Dinan, 72 App. Div. 434, 76 N. Y. Supp. 565; Molloy v. Whitehall Portland Cement Co., 116 App. Div. 839, 102 N. Y. Supp. 363.

Furthermore, we are of the opinion that the plaintiff proved a cause of action. At the time of the accident the defendant was running cars through Delancey street from west to east and across the Williamsburg Bridge. The car tracks, before reaching the bridge, curved sharply toward the south, and then easterly, so that a car running along Delancey street turned and proceeded southerly for a space, turning easterly again before crossing the bridge. On the westerly side of this curve, about two' or three feet from the car tracks, was an unguarded excavation about three feet deep. The plaintiff was crossing from Delancey street, going in a southerly direction to Broome street. In so doing she was compelled to pass along a path between the excavation and the car tracks as they curved towards the south. As she, with several others, was about to cross the tracks, a car approaching the curve was stopped by a policeman to enable them to pass. The plaintiff was the last to cross; and she had passed the front end of the car, when it started and she was struck by the rear fender. At that time she was about two feet from the track. The side of the car passed her safely, but the fender, which was fastened to the car by a strap, and one corner of which projected beyond the car about a foot, struck her and threw her into the excavation. Under these circumstances it cannot be said either that the plaintiff was negligent or that she failed to show negligence on the part of the defendant. The motorman knew that the plaintiff and those who-had crossed ahead of his car were proceeding near to the track and between the track and the excavation, and it was his duty to wait before starting his car until they had had an opportunity of reaching a place of safety, especially when, as it appears, even the overhang of the car, as well as the projecting fender, was liable to strike a pedestrian as the car rounded the curve. This duty he evidently failed to recognize.

Although it has been held that a person at or near a curve in a railroad track may be charged with knowledge that the rear end of a car will project a certain distance beyond the track, the decisions declaring this principle have no application to the facts disclosed in the case at bar. The plaintiff crossed in front of a car while it was at a standstill, and she had a right to assume that the car would not be started or so operated as to strike her, until she had enjoyed a reasonable opportunity to pass the point of danger.

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