
    Rubin Klein, Appellant, v. The New York City Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers for personal injuries — Sufficiency of evidence as to negligence.
    Where it appears in an action by a passenger to recover damages for personal injuries received by him in alighting from a street car that, after the car had stopped to allow him to alight and when he was in the act of alighting and had one foot on the "ground, the car suddenly started and threw him down, it is error to dismiss the complaint.
    Appeal from a judgment dismissing the plaintiff’s complaint, in an action brought in the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, and tried therein before the court and a jury. The pleadings are written and verified.
    Irving I. Kremer, for appellant.
    James L. Quackenbush, for respondent.
   Per Curiam.

This action was brought by the plaintiff to iecover damages sustained by him by reason of the carelessness and negligence of the defendant company in negligently operating a surface car upon which the plaintiff was a passenger. The testimony offered on behalf of the plaintiff is that of himself and two witnesses. At the close of plaintiff’s case the defendant moved that the complaint be dismissed, and the court granted the motion to dismiss, to which plaintiff duly took exception. The plaintiff’s counsel then requested .that the question of negligence be submitted to the jury, which request was denied and to which denial plaintiff took exception. The court then awarded judgment to the defendant, dismissing the complaint. As the complaint was dismissed on plaintiff’s evidence alone, the testimony on the trial is entitled not only to belief but to all favorable inferences that can reasonably be drawn therefrom. The a uncontradieted testimony of the plaintiff is substantially as follows, viz: On the 1st day of August, 1906, he was a passenger on one of defendant’s cars, proceeding in a northerly direction along Avenue B, in the city of Yew York. When the car reached the corner of Second street and Avenue B he wanted to alight therefrom, and requested the conductor to stop the car. The conductor signaled to the motorman, and the car did stop and came to a standstill, at that corner, and as plaintiff was in the act of alighting therefrom,' and before he had a reasonable opportunity to do so, the car started suddenly and plaintiff was thrown to the ground and sustained the injuries complained of. At the time he was thrown he had one foot on the car and the other “on the ground.” The plaintiff was corroborated by one Fleischer, who testified that he was walking along Second street at the time of the accident; that when he reached the corner of Second street and Avenue B he noticed this car, which, at the time, was standing still, and that he saw the plaintiff as “ he was just about to get off the car ” and “ the car gave a sudden move and he fell down;” that he went over to the plaintiff, and assisted him to his feet, and brought him to a doctor’s office, and that he gave his name and address to the plaintiff 'as a witness. The plaintiff’s testimony was also corroborated by the witness Tillie Brown, who testified that she was walking south on the easterly side of Avenue B, and I saw the man about to get off, when all of a sudden the ear gave a start and it threw the man (meaning plaintiff) to the ground.” She also testified that when she first saw the plaintiff “the car was standing stiE;” that after plaintiff feU she went over to where he lay, inquired as to whether he was hurt and that she gave her name and address to the plaintiff; and that, after the accident, the car proceeded on its way and “ ran right off.” She also testified thus: Q. How was he getting off this car when you saw him? A. He had one foot off, when all of a sudden the car gave a quick start and threw him to the ground.” The plaintiff also proved the extent of his injuries by the testimony of Dr. Bernfeld, who made an X-ray examination of plaintiff immediately after the accident, and who testified that-he found the plaintiff suffering from a dislocated thumb and contusions on various parts of his body. He also testified as to the reasonable value of his services. “ In an action for personal injuries, after plaintiff has proved that the accident was caused by a sudden movement of the car, from which he was alighting, it is incumbent on defendant to prove that it was not responsible for the happening of that movement.” Martin v. Second Ave. R. R. Co., 38 N. Y. Supp. 220; Harris v. Union R. Co., 74 id. 1012.

In the case at bar plaintiff established prima facie that he was free from contributory negligence and that the defendant was negligent in starting the car as it did, and the court below, in dismissing the complaint and refusing to submit the question of negligence to the jury, fell into error.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present, Gildebsleeve, Giegebich and Eblangee, JJ.

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