
    William J. Fischel, Appellant, v. Metropolitan Street Railway Company, Respondent.
    First Department,
    May 18, 1906.
    . Negligence injury to passenger boarding front platform of surface car — charge approved.
    In an action to recover for injuries received while attempting to board the front platform of a surface car, when the jury has been instructed that the plaintiff ■ cannot recover i’f the car was in motion unless the motorman was, aware that the plaintiff was attempting to board the front platform, it is not error to charge fhat the plaintiá cannot recover unless he acted as a reasonably jirudent ■man would act under, the circumstances.
    
      A charge that the jury must find that the motorman was “ heedless, careless,” etc.,.is too favorable to the defendant, as the defendant was liable for “ordinary negligence.”
    Appeal by the plaintiff, William J. Fischel, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of Reiy York on the 22d day of May, 1905, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a iiew trial of the action.
    
      Otto Horwitz, for the appellant.
    
      Edward D. O'Brien, for the respondent.
   Laughlin, J.:

The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant in starting a car while lie was attempting to board the same. The .order recites that motion was made upon the minutes of the court upon the exceptions taken in behalf of the defendant at the trial, and upon the grounds that the verdict was contrary to the evidence and to the law, and was for excessive damages ; but in a^memorandum opinion filed by the learned tidal justice he deplores the necessity of granting a new trial and indicates quite clearly that he would let the verdict stand were it not' for what he deemed to be an error in the charge. .The opinion in full is as follows : Despite the hardship imposed upon the plaintiff by a new trial of this, cause, it'seems necessary to set aside the verdict herein, because of the inadvertent disregard of the rule stringently laid(down in Reardon v. Third Avenue R. R. Co. (24 App. Div. 166), which inadvertence should have been corrected before the jury were allowed to go out.” The Reardon case merely held in an action for damages for personal injuries sustained by a pedestrian through a collision with a car at a street crossing, that it ivas error to instruct the jury that each was bound to look out for, and, if possible, prevent any accident,” because the rule is reasonable care and not all possible care. Judged by the rule of that authority, we find no error in the charge. The court, in the main charge; had instructed the jury as follows: If the plaintiff has satisfied you that the accident happoned as he says it did — not as the defendant’s witnesses say it did — that lie acted as would a reasonably prudent man under the circumstances, and that the defendant’s motorman was reckless, careless, so that he suffered an injury thereby, he is entitled to. a verdict which will' compensate him for his loss, suffering and damage.”

. Counsel for the defendant excepted to this part of the charge.: The court thereupon expressly withdrew it and instructed the jury to disregard it, and further charged as a substitute therefor that “ If the plaintiff has, satisfied you 'that he acted on that occasion as would' a reasonably prudent man under the circumstances, and that the defendant’s ihotorman was heedless, careless, acted so negligently that the plaintiff suffered injury thereby,, the plaintiff is entitled to a verdict, which will compensate him for his damage, including pain, suffering and loss.” Counsel for defendant also excepted to the substituted charge, hut we do not ,deem it well taken. The. plaintiff was injured while getting on the front platform, and according to his evidence he had attracted the attention of the motorman who saw his. position. The.court had instructed-"the jury that plaintiff could not recover if the car was in motion when he attempted to board it, and also that unless the motorman was aware that plaintiff was attempting to get • on the .front platform the defendant could not beheld liable for negligence. In all' other respects, the instructions to the jury were those usually giyen in this class of cases, • We fail to discover any error in the charge. The jury were informed that plaintiff could not recover unless -a reasonably prudent man would have acted and done just as he did, which manifestly is the correct' rule. With respect to the charge concerning defendant’s negligence, there might be some grounds of complaint, by plaintiff that the rule laid down did not hold defendant-liable for ordinary negligence, but it surely was not prejudicial to the defendant. -, The motorman could not have acted as would a reasonably prudent man- under like-circum'stances, which was his' duty, and at the same time have been'“heedless, caréless” and have “ acted so negligently that the plaintiff suffered injury thereby,” If ■ the motorman acted as. the jury Were instructed that they must-find that he did act before rendering a verdict against the defendant, then it was inconsistent with the exercise of due care by him. The order, therefore, cannot be sustained upon the ground upon which it appears to have been made. We have examined the evidence in the light of the other grounds upon which the motion for a new trial was made and upon which the learned counsel for the defendant endeavors to sustain it and we find no reason for not allowing the verdict to stand.

It follows, therefore, that the order should be reversed and the verdict reinstated, with costs and motion denied, with costs.

O’Brien, P. J., Patterson, McLaughlin and Houghton, JJ., concurred.

Order reversed and verdict reinstated, with costs, and the'motion denied, with costs. Order filed.  