
    (53 Misc. Rep. 571)
    KLEIN v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    April 10, 1907.)
    1. Appeal—Review—Evidence—I’besumttions.
    Where the complaint was dismissed on plaintiff’s evidence alone, the testimony is entitled on appeal, not only to belief, but to all favorable inferences that can reasonably be drawn therefrom.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3748,]
    2. Tbial—Questions fob Juey.
    In an action for personal injuries caused by starting a car from which plaintiff was alighting, where plaintiff established prima facie that he was free from contributory negligence and that the defendant was negligent in starting the ear as it did, it was error to dismiss the complaint.
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    
      Action by Rubin Klein against the New York City Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.
    Argued before GIRDERSREEVE, P. I., and GIEGERICH and ERRANGER, JJ.
    I'rving I. Kremer, for appellant.
    James R. Quackenbush, for respondent.
   PER CURIAM.

This action was brought by the plaintiff to recover damages sustained by him by reason of the carelessness and negligence of the defendant company in negligently operating a surface car upon which the plaintiff was a passenger. The testimony offered on behalf of the plaintiff is that of himself and two witnesses. At the close of plaintiff’s case the defendant moved that the complaint be dismissed, and the court granted the motion to dismiss, to which plaintiff duly took exception. The plaintiff’s counsel then requested that the question of negligence be submitted to the jury, which request was denied, and to which denial, plaintiff took exception. The court then awarded judgment to the defendant, dismissing the complaint.

As the complaint was dismissed on plaintiff’s evidence alone, the testimony on the trial is entitled, not only to belief, but to all favorable inferences that can reasonably be drawn therefrom. The uncontradicted testimony of the plaintiff is substantially as follows, viz.: On the 1st day of August, 1906, he was a passenger on one of defendant’s cars, proceeding in a northerly direction along Avenue B, in the city of New York. When the car reached the corner of Second street and Avenue B, he wanted to alight therefrom, and requested the conductor to stop the car. The conductor signaled to the motorman, and the car did stop and came to a standstill at that corner, and as plaintiff was in the act of alighting therefrom, and before he had a reasonable opportunity to do so, the car started suddenly, and plaintiff was thrown to the ground and sustained the injuries complained of. At the time he was thrown, he had one foot on the car and the other “on the ground." The plaintiff was corroborated by one Fleischer, who testified that he was walking along Second street at the time of the accident; that when he reached the corner of Second street and Avenue B he noticed this car, which at the time was standing still; that he saw the plaintiff as “he was just about to get off the car,” and “the car gave a sudden move and he fell down”; that he went over to the plaintiff, and assisted him to his feet, and brought him to a doctor’s office; and that he gave his name and address to the plaintiff as a witness. The plaintiff’s testimony was also corroborated by the witness Tillie Brown, who testified that she was walking south on the easterly side of Avenue B, and “I saw the man about to get off, and when all of a sudden the car gave a start, and it threw- the man [meaning plaintiff] to the ground.” She also testified that when she first saw the plaintiff "the car was standing still”; that after plaintiff fell she went over to where he lay, inquired as to whether he was hurt, and that she gave her name and address to the plaintiff; and that, after the accident, the car proceeded on its way and “ran right off.” She also testified thus;

“Q. IIow was he getting off this ear when you saw him? A. He had one foot off, when all of a sudden the car gave a quick start and threw him to the ground.”

The plaintiff also proved the extent of his injuries by the testimony of Dr. Bemfeld, who made an X-ray examination of plaintiff immediately after the accident, and who testified that he found the plaintiff suffering from a dislocated thumb and contusions on various parts of his body. He also testified as to the reasonable value of his services.

“In an action for personal injuries, after plaintiff has proved that the accident was caused by a sudden movement of the car, from which she was alighting, it is incumbent on defendant to prove that it was not responsible for the happening of that movement.” Martin v. Railroad Co., 38 N. Y. Supp. 220, 3 App. Div. 448; Harris v. Union Ry. Co., 74 N. Y. Supp. 1012, 69 App. Div. 385. In the case at bar plaintiff established prima facie that he was free from contributory negligence, and that the defendant was negligent in starting the car as it did, and the court below, in dismissing the complaint and refusing to submit the question of negligence to the jury, fell into error.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.  