
    Anna E. Stevenson, Respondent, v. Adrian H. Joline and Douglas Robinson, as Receivers of the New York City Railway Company, Appellants.
    Second Department,
    June 29, 1908.
    Railroad —. negligence — hand of passenger injured by gate.
    Where the motormau on a surface car, having opened the front gates for passengers to alight and enter, closes the same at a time when one boarding the car has hold of the gates so that her fingers are injured, the defendant is liable.
    It is not an unavoidable accident so as to relieve the defendant from liability, nor was the person boarding the car guilty of contributory negligence in failing to use the hand rails with which the car was equipped.
    
      Appeal by the defendants, Adrian H. Joline and another, as receivers, etc., from a judgment of the Municipal Court of the city; of New York,' borough of Brooklyn, in favor of. the plaintiff, rendered on the 3d day of March, 1908.
    
      Anthony J. Ernest, for the appellants.
    
      William E. Cook, for the respondent.
   Woodward, J.:

There is no material conflict in the evidence in this case. The plaintiff, on'the 26th day of October, 1907, attempted to board one of the defendant’s cars, by the front door, at the corner of Delancey and .Clinton streets, borough of Manhattan. The motorman had opened the folding gate on the front platform, for passengers to enter, and several passengers preceded the plaintiff upon the car. While she was in the act of stepping, upon the platform, plaintiff took hold of the folding gate, .and jnst at. that moment the motorman closed the gate, catching her thumb and producing the injury for which she has recovered a judgment for $222. The defendants appeal from the judgment, and- on the authority of O’Rourke v. Interborough Rapid Transit Co. (46 Misc. Rep. 453) urge that this was an unavoidable accident for which the defendants are not liable. We are of the opinion that the case relied upon is not an authority for reversal; that the defendants’' motorman in this case, having opened the gate to admit passengers, was not justified in closing it until the plaintiff had had' a fair opportunity :to get into a position of safety. While it is probably true that the car was equipped With hand rails, and it was not necessary for the plaintiff to take hold of the folding gate, still it can hardly be said as- a matter of law that she was guilty of negligence contributing to the accident by taking hold of this gate; it presented a convenient place for taking hold, and it was entirely safe so long as the motorman did not close- it. It was not, therefore, a proximate cause of the accident; the accident resulted solely through the affirmative act of the. motorman in closing the gate while the plaintiff was attempting to get on board, where the gate had been opened for this purpose, and it was the duty of the motorman to give' her an opportunity to get . on board safely. The exercise of any reasonable degree of care on the part of the motorman would have obviated the accident, and the tzual court very properly found for the plaintiff. The judgment appealed from should be affirmed, with costs.

Jenks, Hookeb, Q-aynob and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  