
    (109 App. Div. 658.)
    BUTLER v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    December 8, 1905.)
    Carriers—Injuries to Passengers—Street Railroads—Contributory Negligence-Question for Juny.
    In an action for injuries to a passenger while 'standing in the aisle of a crowded street car, evidence held to require submission to the jury of the issue of plaintiff’s contributory negligence in failing to have hold of a strap at the time he was injured.
    
      Appeal from Municipal Court, Borough of Brooklyn, Second District.
    Action by Leonard C. Butler against the New York City Railway Company. From an order denying defendant’s motion to set aside a verdict in favor of plaintiff and for a new trial, defendant appeals.
    Reversed.
    Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, HOOKER, and MILLER, JJ.
    William E. Weaver, for appellant.
    Walter H. Dodd, for respondent.
   MILLER, J.

The plaintiff has recovered a judgment in the Municipal Court for personal injuries alleged to have been sustained as a result of the defendant’s negligence. Plaintiff’s claim is that, while he was standing in the aisle of a crowded street car, the sudden starting of the car threw the people in front of him against him with sufficient force to produce a fall from which the injuries complained of are alleged to have resulted. The car was somewhat crowded when the plaintiff boarded it. The plaintiff did not have hold of a strap, but he testified that there was none available at the place where he was standing. The court charged the jury:

“I charge that there is no question of contributory negligence in the case; that the plaintiff has shown himself free from contributory negligence.”

The respondent seeks to sustain this charge by cases which hold that it is not contributory negligence as a matter of law to board a crowded street car and occupy a position such as the plaintiff occupied when injured; but these cases are beside the question here. The inferences to be drawn from the evidence, as well as the credibility of the plaintiff, were for the jury; and, while the plaintiff may not have been guilty of negligence as matter of law, it is obvious that it was error to charge as matter of law that he was not guilty of negligence.

For this reason the judgment and-order must be reversed, and a new trial ordered; costs to abide the event. All concur.  