
    Oscar E. Poole, Respondent, v. Metropolitan Street Railway Company, Appellant.
    Negligence— liability of a street car company for injury done to a pedestrian notwithstanding his contributory negligence.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while crossing a street in the city of New York in consequence of his being struck by one of the defendant’s street cars, it appeared that the first rail of the defendant’s track was fourteen feet distant from the curb, and that when the plaintiff started from the curb the car which struck him was forty or fifty feet distant and was proceeding slowly; that the plaintiff looked up and down and that when he reached the first rail the car, which was then fifteen feet distant, suddenly and without warning increased its speed, and that before he succeeded in crossing the track he was struck by the car. There was no evidence that the gripman was aware that the plaintiff was in a situation of danger and thereafter negligently caused the accident.
    
      Held, that it was error for the court to charge that, “Even if the plaintiff was negligent in putting himself in a position of peril, if after such negligence occurred, the defendant’s motorman in the exercise of ordinary care could have avoided colliding with him, the plaintiff may recover,” as such an instruction had no application to the case.
    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 6th day of December, 1902, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 4th day of December, 1902, denying the defendant’s motion for a new trial made ujjon the minutes.
    The action is to recover for personal injuries sustained by the plaintiff as he was crossing Broadway on the south crosswalk of Twelfth street in a westerly direction and stepping from the westerly rail of the north-bound track, by being struck and thrown by a north-bound car through the alleged negligence of the defendant’s gripman.
    The accident occurred at midday, November 22, 1899. The plaintiff’s version is that he had crossed to the east side of Broadway to post a letter on the southeast corner of Twelfth street and was returning, and when he left the curb, which was fourteen feet from the first rail, the car was forty or fifty feet away and coming with reduced speed, very slowly; that he proceeded, looking both up and down, and when at the track he saw the car suddenly jump forward with the jerk of the cable, or for some reason, and bear rapidly down upon him; that when he was at the first rail it was fifteen feet away and he had but five feet to go, but had not quite succeeded in getting off the westerly rail, when he was struck and hurled from the track and that he had received no signal or warning. The defendant’s evidence is to the effect that the car was going slowly at the time of the accident in order to stop on the north side of the street and that the plaintiff ran in front of the car when but a few feet ahead of it and though the gripman endeavored to stop he was unable to avoid striking him.
    After the court had charged the jury the plaintiff’s counsel made several requests, one of which was that “ Even if the plaintiff was negligent in putting himself in a position of peril, if after such negligence occurred, the defendant’s motorman in the exercise of ordinary care could have avoided colliding with him, the plaintiff may recover.” This request was charged, the defendant duly excepting on the ground that it had no application to the case. The jury returned a verdict of $500 for the plaintiff, and from the judgment thus entered the defendant appeals.
    
      Charles F. Brown, for the appellant.
    
      J. Brownson Ker, for the respondent.
   O’Brien, J.:

We think this judgment should be reversed for the error in charging the request of the plaintiff which had no application to the facts presented. This error we have held in the three recent cases of Csatlos v. Met. St. R. Co. (70 App. Div. 606); Sciurba v. Met. St. R. Co. (73 id. 172) and Bortz v. Dry Dock, E. B. & B. R. R. Co. (78 id. 388) requires a reversal. What was said in Bortz v. Dry Dock, E. B. & B. R. R. Co. (supra) is equally applicable here, namely, that the case is altogether unlike those in which a new element is introduced to show that notwithstanding contributory negligence, by the exercise of reasonable care and prudence of a defendant or its servants the accident could be avoided.” It is true that we have testimony that the car while approaching was suddenly started forward when the plaintiff "was at the track; but there is nothing to show that the gripman ivas aware of the plaintiff’s proximity and his position of danger and thereafter negligently caused the accident. There were presented, therefore, merely the ordinary questions of negligence and freedom from contributory negligence and no facts to justify charging the plaintiff’s request. The evidence with respect to the plaintiff’s freedom from contributory negligence, as shown by a review of the record and by the words of the learned trial judge in denying the motion for a new trial that he had concluded “to give the plaintiff the benefit of the doubt” he entertained, in view of the finding of the jury as they may have regarded the plaintiff’s conduct as an error of judgment,” was close; and under such circumstances the erroneous charge was .particularly harmful.

Our conclusion is that the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J"., Ingraham, McLaughlin and Laughlin, JJ., concurred.

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