
    Edward J. Ward, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — charge that if a ca/r was “ started with a sudden jerk * * * the verdict will be for the plaintiff" — it is erroneous where the negligence and contributory negligence are questions of fact.
    
    In an action brought to recover damages for personal injuries which the plaintiff claimed to have sustained in consequence' of the alleged negligence of the defendant’s employees in suddenly starting one of its cars while the plaintiff -was in the act of boarding it, it is improper for the court to charge, at the plaintiff’s request, “If the motorman of defendant’s car started the same with a sudden jerk before the plaintiff was safely on board, and while he was attempting to board the same, and plaintiff was injured thereby, the verdict will be for the plaintiff,” as the effect of such charge is to take from the jury the determination of the questions of the defendant’s negligence and of the plaintiff’s contributory negligence, although both of such questions were, upon the evidence adduced upon the trial, questions of fact.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 14th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Charles W. Lefler, for the respondent.
   Per Curiam :

The action was brought to recover damages for personal injuries which the plaintiff alleges that he sustained as the result of the negligence of the defendant’s servants in starting a south-bound Eighth avenue car while he was in the act of boarding it at Twenty-third street.

Upon the conclusion of the court’s charge to the jury the plaintiff made the following request, which was charged, the defendant duly excepting: “ If the motorman of defendant’s car started the same with a sudden jerk before the plaintiff was safely on board, and while he was attempting to board the same, and plaintiff was injured thereby, the verdict will be for the plaintiff.”

The error in this charge consists in taking from the jury the questions of negligence and contributory negligence. Where testimony is given it is the province of the jury to draw the inferences; and, unless it can be held on the testimony adduced that the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff are established as matter of law, it is error for the court to entrench upon the right of the jury to determine these questions.

It is not contended that the evidence here established as matter of law the negligence of the defendant, that being clearly a question of fact for the jury. Nor as matter of law did it appear that the plaintiff was free from contributory negligence. The court, in the charge objected to, however, instructed the jury that, if the motorman started the car with a sudden jerk while plaintiff was boarding it and the plaintiff was thereby injured, “ the verdict will be for the plaintiff.” This virtually was concluding that evidence to that effect established, as matter of law, negligence on the part of the defendant and plaintiff’s freedom from contributory negligence.

The law is firmly settled that contributory negligence prevents recovery, and that upon conflicting inferences it is a question for the wry-

Upon the other branch of the case the court in effect characterized the conduct of the motorman as testified to by the witnesses as negligent. In the recent decision of this court in Fiori v. Metropolitan St. R. Co. (98 App. Div. 49) such a charge was held to be ground for reversal, and therein the authorities are cited and discussed. Although, the objectionable charge in that case went further and referred to the plaintiff’s witnesses as having testified to the acts which were characterized as negligent, it was the characterization that constituted the vice in the charge, since it removed from the jury the right to say whether the acts testified to were or were not negligent.

We think, therefore, that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Van Brunt, P. J., O’Bbien, Ingbaham, McLaughlin and Hatch, JJ.

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