
    (42 Misc. Rep. 192.)
    DOERING v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    December 17, 1903.)
    1. Appeal—Verdict— Coneetcting Evidence—Conclusiveness.
    A verdict based on conflicting evidence is conclusive as to the facts on appeal.
    2. Carriers — Injuries to Passengers — Premature Start — Actions — Instructions.
    In an action for injuries to a passenger alleged to have resulted by reason of a premature start, an instruction that, in order for plaintiff to recover, he must prove that the accident happened substantially as he alleged; that it happened through the negligence of defendant’s servants operating the car, and without any contributory negligence on plaintiff’s part—that is, that the car was standing still, and, before plaintiff had an opportunity to board it, it was started; and that it made no difference how short a time it was standing still, if plaintiff boarded the car, and the conductor started it before plaintiff had a reasonable opportunity to get on the car, the defendant was liable—was not objectionable as withdrawing from the jury defendant’s negligence as a question of fact, and as instructing that defendant was liable irrespective of plaintiff’s freedom from contributory negligence, which had been submitted in another instruction.
    Appeal from City Court of New York, Trial Term.
    Action by Christopher Doering against the Metropolitan Street Railway Company for injuries to plaintiff while in the act of boarding defendant’s car, alleged to have been prematurely started. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before FREEDMAN, P. L, and BISCHOFF and BLANCHARD, JJ.
    Bayard H. Ames and F. Angelo Gaynor, for appellant.
    Chas. G. F. Wahle, for respondent.
   BISCHOFF, J.

The action was by a passenger to recover for personal injuries sustained by a fall from the car, which had come, to a stop at his signal and was caused to start while he was in the act of boarding it. There was no dispute as to the fact of the plaintiff’s mishap, the controversy being mainly as to the manner in which it was brought about. Evidence given for the defendant tended to show that it was the, result of the plaintiff’s personal carelessness in that he attempted to board the car while it was yet in motion, but, in the absence of any degree of intrinsic improbability, we cannot say that the jury erred in crediting the testimony of the plaintiff’s witnesses rather than that of the witnesses called for the defendant. It was the jury’s province to determine the question of credibility, and with the preponderance of the evidence as thus established the verdict for the plaintiff must be accepted as conclusive.

The validity of the plaintiff’s recovery is assailed for one alleged error in the ruling of the trial court. The justice charged the jury as follows:

“For the plaintiff to recover he must prove that the accident happened substantially as he claims it happened, and that it happened through the negligence of the defendant’s servants operating the ear, and without any contributory negligence on the part of the plaintiff. Those three things are necessary in the case for the plaintiff to recover; that is: First. That the accident occurred in the manner in which he claims it did occur; in this ease that the car was standing still, and before he had an opportunity to board it it was started. It does not make any difference how short a time it was standing still; if the plaintiff attempted to board the car, and the conductor started it before he had a reasonable opportunity to get. on the car, that was negligence for which the defendant is liable. I charge you that.”

This is criticised as withholding from the jury the defendant’s negligence as *a question of fact, and as being an instruction that the defendant was liable irrespective of any question of the plaintiff’s freedom from contributory negligence. Kellegher v. Forty-Second Street R. R. Co., 171 N. Y. 309, 63 N. E. 1096, is relied upon as an authority which calls for the reversal of the judgment appealed from. In the Kellegher Case the charge was ^

“In this particular case the circumstances testified to by the various witnesses are of such a character that I may safely say to you that, if you believe the witnesses called for the plaintiff who have testified to the circumstances under which the accident happened, it must be said that the act of the conductor was a negligent act, and such an act as may warrant a cause of action on behalf of the plaintiff.”

The vice of this charge was very clearly printed out by the court. Instead of submitting the evidence to the jury to find the facts necessary to constitute a cause of action in favor of the plaintiff, the court submitted to it only the question of the credibility of the witnesses, followed by the instruction that, if the plaintiff’s witnesses were to be believed, a cause of action was established; and the constituent facts of the cause of the action, whether the defendant had exercised proper care in the management of its car, and, if not, whether such omission caused the injuries complained of, and whether the plaintiff was free from any negligence contributing to the injury, thus failed of submission to and determination by the jury. No such objection can be fairly made to the charge in the case at bar. It may not have been as full and as explicit as counsel desired, but that 'could have been obviated by a request for further instruction. We are here concerned with the claim that the jury were instructed.

That a carrier of passengers is under a legal duty to afford an intending passenger reasonable opportunity to board the car in safety before again starting it, if the starting will within reasonable apprehension have the. effect of making the passenger’s position insecure, and that a breach of this duty is negligence, for which the injured passenger will have a cause of action, provided he was free from all contributing fault, is an elementary proposition, well supported by the case above referred to. This proposition was all that the charge, as excepted to, imported, when taken with other portion of the charge which submitted the question of negligence and freedom from contributory negligence to the jury. A reasonable interpretation of the charge in the present instance makes it plain that the court did just that which was omitted in the Kellegher Case, and that it submitted the evidence to the jury, to say therefrom whether the constituent elements of the plaintiff’s right of recovery appeared, and then proceeded to the instruction that, if such elements did appear, the plaintiff was entitled to a verdict. The judgment and order appealed from should be affirmed, with costs. All concur.  