
    (38 Misc. Rep. 795.)
    SCHWARTZ v. METROPOLITAN ST. RY. CO.
    (City Court of New York, General Term.
    June, 1902.)
    1. Street Raií/roads — Negligence—Instructions.
    Defendant being entitled to have the question of contributory negligence submitted, plaintiff’s requested instruction that if defendant was negligent in running the car after plaintiff had fallen, and while he was being dragged, is properly refused, as eliminating the question.
    Appeal from trial term.
    Action by Max Schwartz against the Metropolitan Street Railway Company. From a judgment on a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    Argued before FITZSIMONS, C. J., and SEABURY and CONLAN, JJ.
    Oswald N. Jacoby, for appellant.
    Henry A. Robinson, for respondent.
   CONLAN, J.

The action was brought to recover damages for the alleged negligence of the defendant in operating one of its cars. So far as the facts of the case are concerned, it may with truth be said that there is scarcely a single point on which both parties are in accord, and the evidence thus adduced upon the trial was submitted to the jury in a charge which was eminently fair to both sides. Indeed, the only exception to the charge presented for our consideration was to the refusal of the trial justice to charge, as requested by the plaintiff, that, “irrespective of stopping the car at either corner of Grand street, if the jury find that the defendant was negligent in running that car after the plaintiff had fallen, and while he was being dragged along the ground until the car came to a stop, then the verdict should be for the plaintiff.” A decision of this question in the plaintiff’s favor would have entirely eliminated from the case the question of the plaintiff’s contributory negligence. Wright v. Railroad Co. (Sup.) 5 N. Y. Supp. 707. And this precise question was one which the defendant was entitled to have submitted to the jury. The jury determined the whole case upon a sharp conflict of evidence, and with their determination we are not disposed to interfere. The judgment and order appealed from must be affirmed, with costs.

Judgment and order affirmed, with costs. All concur.  