
    Jones Saltzman, Resp’t, v. The Brooklyn City Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Negligence—Conteibutoky.
    Where, in an action for negligence, the testimony on the_ part of the plaintiff, as to the facts and circumstances of the accident, is' denied on the part of the defendant, a case is presented where the question of plaintiff's contributory negligence is for the jury.
    
      2. Same.
    In this case, it was held that, upon the facts necessarily found by the jury, there was no basis for even a question as to plaintiff’s negligence.
    3. Evidence—Negligence.
    In an action for negligence, it is proper to permit the surgeon to answer that, in his opinion, the injury received was liable to grow worse.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order danying a motion for a new trial.
    
      Morris & Whitehouse, for app’lt; Julius Klanlce (Boswell H. Carpenter, of counsel), for resp’t
   Barnard, P. J.

On the 14th of March, 1892, the defendant received the plaintiff upon its car, which was entirely filled inside so that he was compelled to stand upon the platform in the rear. The car stopped at frequent intervals to receive more passengers, so that the plaintiff was crowded to one side of the platform and then to the step. At this time the. horses attached to the car began to run faster and the car jounced up and down, so that the plaintiff was thrown from the platform and injured. Under these facts, proven by the plaintiff and denied by the defendant, the case was one for the jury. Lehr v. S. & H. P. R. R. Co., 118 N. Y., 556; 30 St. Rep., 1.

The very statement of the facts presents a case where the contributory negligence upon plaintiff’s part shows a case for the jury. This is the general rule, and the particular facts in the case furnish no exceptions to its appliance here. Assuming the facts as necessarily found by the jury, there is no basis for even a question as to the plaintiff’s negligence. He got upon the car at defendant’s invitation as a passenger, and it was so overloaded that he was forced to stand upon the step. While in this insecure position, the defendant increased its speed so as to jolt the passenger from his standing place, whereby he was injured.

It was proper to permit the surgeon to answer-, that, in his opinion, the injury received was liable to grow worse. Alberti v. v. N. Y., L. E. etc., R. R. Co., 118 N. Y., 77; 27 St. Rep., 865.

The judgment and order denying new trial should be affirmed, with costs. _  