
    Sophie D. Schoeller, Appellant, v. Metropolitan Express Company, Respondent.
    
      Negligence — driving on a trot alongside ,of a street car in a crowded, thoroughfare — injury to a passenger alighting from the car — when a question for a jury is presented.
    
    Where, in an action brought to recover damages for personal injuries sustained by the plaintiff, who, upon alighting from.a surface ear in a crowded thorough fare of the city of New York, was struck by one of the defendant’s wagons which'was traveling in the same direction as the street - car, evidence js given to the effect that the driver of the wagon, being obliged to turn toward the .car tracks in order to avoid a cab, continued oh a trot as he approached ■ the car instead of stopping or walking his horse, will justify a finding that such driver was guilty of negligence, and renders it -improper for the trial court.to dismiss the plaintiff’s complaint.
    Appeal by the plaintiff, Sophie D, Sclioe'ller, from a' judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of- the county of Rew York on the 6th day of March, 1905, upon the dismissal off the complaint by direction of the court after á trial at the New York Trial Term. ■
    
      Ojiarles Strauss, for the appellant.
    
      Eugene Lamb Richards, Jr., for the respondent.
   Ingraham, J.:

The plaintiff, a passenger upon a Broadway surface car, wishing to alight at Thirty-first street ahd Broadway, motioned the conductor to stop. She testified that after the car came to a stop- she stepped, off on the street facing towards the front of the car, when one of the defendant’s. wagons ran into- her injuring her severely, The driver of the wagon, called for the defendant, testified that he was' going up Broadway at a dog trot, and to avoid' a cab standing on the east side of Broadway at Thirty-first street he turned his horse toward the middle, of the. street; that j.ust as.he got about half way between Thirty-first and Thirty-second .streets “ this car shot' suddenly right up alongside of me and pinned me right, there. The lady suddenly jumped right off the car'with the hand holding on or in the car, right that' way; Back towards me. Just as my horse’s head was about opposite her. When I noticed her getting down. I pulled up the horse.”

The motorman of the car testified that he passed the express wagon about the middle of the block between Twenty-ninth and Thirtieth streets; that he stopped at the corner of Thirty-first street, when a shout called his attention to the accident; that he then turned around and saw the plaintiff between the car and the express wagon; that after he passed the express wagon between Twenty-ninth and Thirtieth streets, he had to slow up for passengers and the wagon came up and got ahead of him, and at Thirty-first street he passed it again; that as the car passed the wagon the wagon was about two feet away from the car on the east; that after he passed the wagon he knew nothing more about it until he heard the scream; that he stopped his car about thirty feet north of the crossing. At the end of this testimony the court dismissed the complaint.

I think that the case should have been submitted to the jury. Broadway at this point is a crowded thoroughfare, with ears constantly passing and stopping. The jury would have been justified in finding that after the car had passed this wagon it stopped, that the driver continued trotting close to the car, without apparently making any effort to stop his wagon until after the plaintiff had got off the car, and that the truck was behind the car when the plaintiff attempted to step off. The driver had to turn to avoid a cab which Was standing at the curb so that his wagon was close to the track. He continued on a trot instead of stopping or walking his horse and the jury would have been justified in finding that it was negligence in driving up close to the car-under the circumstances. The question of the plaintiff’s contributory negligence was, I think, also for the jury.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  