
    William Clinton, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence—boarding a street railroad car in motion—sudden starting of the car as the passenger attempts to board it—when the motorman is negligent.
    
    In an action brought against a street railway company to recover damages for personal injuries sustained by the plaintiff, the latter gave evidence tending to . show that he stood at a point where the defendant’s cars were accustomed to-stop for the purpose of receiving passengers, and that when an approaching car was about twenty-five feet distant he signaled to the motorman his desire to board it; that the speed of the car was slackened until it was going as slow as a walk; that as he stepped or attempted to step on the rear platform of the car the motorman suddenly increased the speed of the car, causing the plaintiff to receive the injuries complained of.
    The motorman of the car testified that he saw the plaintiff’s signal, but that his car was behind time and that he called to the plaintiff to take the next car. He did not state whether or not he slowed up the car as testified by the plaintiff.
    The court submitted the case to the jury under the following charge: “It is for you to say whether or not the motorman saw him (the plaintiff) and slowed down in response to his signal, and then started off without giving him a rea. sonable time to get safely on the car. If he did see that the plaintiff was getting on and he started off under these circumstances, that would be negligence. If ' the motorman did not see him getting on and did not see his signal and had no reason to apprehend that he was going to get on, although he had slowed down' and started off again, that would not be negligence and you cannot find for the plaintiff,”
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed; . ,
    
    
      That the question whether the plaintiff was guilty of contributory negligence was one of fact and was properly submitted to the jury;
    That the charge as1 to the circumstances under which the jury might find the defendant guilty of negligence was correct;
    That the court properly refused to charge, except as it had already charged, that “ even if the motorman saw this plaintiff signal and in response thereto slowed his car, unless the motorman actually saw the plaintiff in the act of hoarding the car it was not negligence for him to increase the speed of the car before the rear of the car had passed the plaintiff.”'
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of June, 1903, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office ón the 17th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.'
    
      L. R. Oeland, for the appellant.
    
      Edward J. McCrossin, for the respondent.
   Hirschberg, P. J. :

The plaintiff was injured while attempting to board one of the defendant’s trolley cars on Sterling place, in the borough of Brooklyn, in the middle of the block between Classon and Washington avenues. The block is a long one, but at about the point where the plaintiff signaled the motorman to stop the car there is a station where the cars are accustomed to stop for the purpose of receiving passengers. The accident occurred at twenty minutes to seven o’clock on the morning of October first. The plaintiff testified that he gave the motorman the signal when the car was about twenty-five feet distant ; that the speed of the car . was slackened so that it was going as slow as a walk, and so that he could step on, but that just as he stepped or attempted to step on the car at the rear platform the motorman applied the power with full force, causing the car to go ahead suddenly and swiftly, thereby causing his injuries. His version of the occurrence was corroborated in its essential features by the testimony of apparently disinterested witnesses. The motorman testified that he saw the signal, but that his car was behind time; that he called to the plaintiff, Next car behind, take your time,.” and that he did not stop the car until he received a bell from the conductor. Whether or not he slowed up the Car, or slackened its speed before he got the bell, he did not state.

No. claim is made that the plaintiff was chargeable with contributory negligence, the points relied on by the appellant relating only to the question of the defendant’s negligence and to certain refusals of the trial judge to charge as requested upon that question. The question of the plaintiff’s contributory negligence was one of fact, and was fairly submitted to the jury.' It is well settled that it is not ordinarily negligence, as matter of law, for a person to get upon a street car while it is in motion. (Eppendorf v. B. C. & N. R. R. Co., 69 N. Y. 195 ; Moylan v. Second Avenue R. R. Co., 128 id. 583, 584 ; Morrison v. B. & S. A. R. R. Co., 130 id. 166 ; Distler v. Long Island R. R. Co., 151 id. 424 ; Savage v. Third Avenue R. R. Co., 29 App. Div. 556 ; Wallace v. Third Avenue R. R. Co., 36 id. 57 ; Sexton v. Metropolitan Street R. Co., 40 id. 26 ; Kimber v. Metropolitan Street R. Co., 69 id. 353 ; Lobsenz v. Metropolitan Street R. Co., 72 id. 181.)

The appellant insists, however, that the case presented no evidence of negligence on the part of the defendant, and relies in support of the proposition on the case of Monroe v. Metropolitan Street R. Co. (79 App. Div. 587). I cannot see why the decision-in that case should control the disposition of this one. There the passenger attempted to board the car in the middle of it and before the rear of the ■ car had reached the place where he was standing It was held that no negligence could be imputed to the motorman merely because he accelerated the speed of the car before it actually stopped unless he saw. that the intending passenger was at that time attempting to board it. The trial court submitted that case to the jury upon the theory that they might find under the circumstances stated that the conductor was negligent. The appellate court said (p. 589): “ But assuming that there was a question for the jury as to the negligence of the motorman, there was certainly no evidence to justify a finding that the conductor was negligent.” What the ■ court said in that Case (p. 590) to the effect that the motorman could not assume that the plaintiff Would attempt to board the car until it had actually stopped ” must be applied to the facts as therein presented. In this case the charge on the subject of the defendant’s negligence was certainly as favorable, to the defendant, as the facts warranted, and the verdict must be deemed1 to have been based on a finding which included the hypothesis suggested by the court which would sustain the claim of negligence. The trial judge charged the jury on that subject as follows: “ The plaintiff says that the negligence was that the car slowed down — he claims that it did, but it is for you to say whether the- evidence bears that out — the plaintiff says that it slowed down almost to a stop and then started off and threw him when he was getting on. Jf that be the fact it is for you to say whether or not the motorman saw him and slowed down in response to his signal, and then started off without giving him a reasonable time to get safely on the car. If he did see that the plaintiff was getting on and he started off under these circumstances, that would be negligence. If the motorman did not see him getting on and did not see. his signal and had no reason to apprehend that, he was going to get on, although he had slowed down and started off again, that would not be negligence and you cannot find for the plaintiff.” The defendant’s counsel thereafter asked the court to charge that “ even if the motorman saw this plaintiff signal and in response thereto slowed his car, unless the motorman actually saw the plaintiff in the act of boarding the car it was not negligence for him to increase the speed of the car before the rear of the car had passed the plaintiff.” The court refused to charge this except as already charged, viz., in effect that if the motorman had reason to believe that the plaintiff was getting on the car it would be equiva- • lent to seeing him, and Would equally enjoin the exercise of care in refraining at that time from suddenly starting the car into violent motion.

No other point raised seems to require discussion.

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.  