
    FITZGERALD v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    March 21, 1905.)
    Street Railroads—Injuries to Pedestrians—Contributory Negligence.
    It is not contributory negligence, as a matter of law, for a person to-cross a street railway track between two motionless cars.
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by William T. Fitzgerald, by his guardian, against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed.
    Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.
    James H. Hickey, for appellant.
    William E. Weaver, for respondent.
   PER CURIAM.

It cannot be said to be contributory negligence, as a matter of law, for a person to cross a street railway track between two motionless cars. The circumstances under which this accident happened made it incumbent upon defendant to explain, how it happened that the car started and struck the plaintiff. The-dismissal of the complaint was error.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.  