
    STERN v. HALL.
    (Supreme Court, Appellate Term, First Department.
    June 24, 1913.)
    Negligence (§ 136)—Taking Case from Jury—Questions of Fact.
    Where the record does not show that the plaintiff was chargeable with contributory negligence as a matter of law, it is error to dismiss the complaint on the ground of contributory negligence at the close of his case.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec.
    Dig. § 136.*)
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by Edward Stern against Harvey Melville Hall. Judgment for the defendant, and plaintiff appeals. Reversed, and new trial ordered.
    Argued June term, 1913, before SEABURY, PAGE, and BI-JUE, Jj.__
    
      Emanuel Jacobus, of New York City, for appellant.
    Charles De Hart Brower, of New York City (William R. Hill, of New York City, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   PER CURIAM.

At the close of the plaintiff’s case the complaint was dismissed, upon the ground that the plaintiff was chargeable with contributory negligence. Upon the record we are of opinion that the question of contributory negligence should have been submitted to the jury. The plaintiff certainly was not chargeable with contributory negligence as a matter of law, and it is doubtful whether he was as a matter of fact.

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