
    Max Goldwasser, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1900.)
    Negligence — Starting a surface street car while a passenger is trying to board it.
    Where a conductor, who knows that a truck ahead of his ear is standing close to the track, starts his car while a passenger is trying to board it and is being impeded by persons who got on before him, and the passenger is injured by being carried on and struck against the truck, there is evidence of negligence in the conductor sufficient to justify a jury in giving damages to the passenger against the corporation operating the car.
    Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment in favor of plaintiff. Action to recover damages for personal injuries caused by the alleged negligence of the defendant. A truck was standing in the street, some twenty or thirty feet ahead of the car. The plaintiff claimed that, before he could get up the step and into the car, he was carried along, and struck his right side and leg against the truck.
    H. A. Robinson (John T. Little, of counsel), for appellant.
    M. D. Steuer, for respondent.
   Per Curiam.

There was sufficient evidence to justify the jury in finding that the car was standing still when the plaintiff attempted to board'it; that the conductor knew at the time that the truck was standing close to the track; and that the car was started before the plaintiff had reached the platform, being impeded by the other passengers who hoarded the car just ahead of him. The conductor testifies that he saw two or three men attempting to board the car at once, and under these circumstances, knowing as he did the position of the truck, he should not have started the car until the plaintiff had safely boarded it. Moylan v. Second Ave. R. R. Co., 128 N. Y. 583, differs materially as to its facts from the present case. There the plaintiff boarded the car while it was still moving, and when it was within six or seven feet of the wagon which he struck. It did not appear that the conductor had aiiy knowledge of the position of the wagon. In Caspers v. Dry Dock, E. B. & B. R. R. Co., 22 App. Div. 156, the plaintiff remained standing on the foot board unnecessarily until he was hit by a truck standing near the track. There was nothing, as he himself testified, to prevent his entering the car if he had chosen to do so. In the present case the plaintiff was unable to get upon the platform. The charge was as favorable to the defendant as it had the right to ask, and there was evidence upon which the jury might properly find as it did, that the defendant had been guilty of negligence and the plaintiff free from contributory negligence.

Present: Truax, P. J.; Scott and Dugro, JJ.

Judgment affirmed, with costs.  