
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July 19, 1913.]
    Swing, Jones and Jones, JJ.
    Owen W. Grubbs v. Cincinnati, L. & A. Elec. St. Ry.
    1. Passenger Stepping Off Last Step of Electric Car After Seeing Signal not per se Guilty of Contributory Negligence.
    One having left his seat in an electric car and being about to step off the last step when he saw the signal by the conductor given for the car to start forward, is not guilty of contributory negligence, as a matter of law, in not abandoning his purpose to alight.
    2. Testimony on Former Trial Reversed by Reviewing Court Explained in Second Trial Making Arrest from Jury Erroneous.
    In an action against an electric street railway company for injuries received in alighting from a car, plaintiff’s evidence on a former trial that he saw the signal to start when he “started to leave the car,” upon which the reviewing court held him guilty of contributory negligence, being explained to mean that he was about to step off the car instead of leaving his seat, states a fact for the jury to determine and arresting the case was erroneous.
    [Syllabus approved by the court.]
    Error to common pleas court.
    
      George B. Goodhart, C. B. Matthews and James B. Swing,. for plaintiff in error.
    
      Stanley Shaffer, for defendant in error.
   JONES, E. H., J.

Tbe plaintiff in error, Owen W. Grubbs, filed bis petition in tbe common pleas court praying damages against tbe defendant for personal injuries sustained by bim while alighting from one of defendant’s interurban cars. Tbe negligence complained of was tbe sudden jerking or starting of tbe car while be was in tbe act of stepping to tbe ground from tbe rear platform.

Upon the first trial of the case in the court below the plaintiff recovered judgment in a substantial sum, which judgment was reversed by this court for lack of sufficient evidence to sustain it and the cause was remanded for a new trial. This court in its former opinion found that the plaintiff was negligent in attempting to leave the car while it was in motion and at a time when, according to his own evidence, he had warning that the speed of the car was likely to be accelerated at any moment. The fiurHug of this court at that time was based upon the evidence of the plaintiff, which was quoted in the court’s opinion as follows:

“ Q. And you saw him there (the conductor) when you started to leave the car; is that it? A. Yes, sir.
“Q. And you saw him or somebody there waving a lantern? A. Yes, sir.
“Q. For the car to go ahead? A. Well, I suppose it was xo go ahead.”

The theory upon which the former judgment was reversed, therefore, was that plaintiff had testified that when he left his seat upon the inside of the car he saw the conductor ahead waving his lantern as a signal for the ear to advance.

At the second trial of the case in the court of common pleas, which is now under review, plaintiff explained this evidence, and stated that it was when he was on the rear platform and about to leave the same that he first saw the lantern and the signal therefrom for the car to advance.

We quote from the bill of exceptions as follows:

“Q. Can you say where you were when you first saw this lantern? A. Well I was stepping down, or on the last step to leave the car.
“Q. Was it after you turned to leave the car? A. Yes sir. I didn’t notice the motion of the car until I got on the lower step and saw the shadows slightly moving — the shadows from the windows.”
And again:
“Q. What were you doing when you saw that lantern waving? A. I was on the last step or the next to the last step.
“Q. Going forward? A. Going forward, yes, sir.
“Q. Was there a lurch then and a sudden starting of the car? A. There was.”

The court below in the second trial directed a verdict in favor of the defendant, and did so upon the theory that the evidence was the same as at the former trial and that following the decision of the circuit court the plaintiff as a matter of law could not recover.

We think the court was in error in proceeding upon this theory. The explanation given by the plaintiff of his former evidence and the circumstances as related by him in the second trial make a case that should have been submitted to the jury. The construction placed upon his testimony as first given was a re’asonable and proper one-, and when so construed the evidence was such as would bar recovery on the ground of contributory negligence. But he now says that what he meant by the words “when I started to leave the car” was not when he left his seat within the car, but when he was about to step off the car. Under the state of facts as he now gives them we can not say as a matter of law that he did not act as a person of ordinary prudence would have acted under the circumstances. It appears to us that this is a question upon which reasonable minds might differ, and is therefore one to be determined by a jury.

The judgment of the court below will therefore be reversed and the cause remanded for a new trial.

Swing and Jones, JJ., concur.  