
    Josephine Friedel, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    April 26, 1912.
    Railroad — negligence — injury to passenger on trolley car — proof raising question for jury.
    It is error to dismiss the complaint in an action brought by a passenger on a trolley car to recover for personal injuries where it appears that the motorman, knowing that a portion of the road had been for a long time below grade and subject to flooding when the rainfall was heavy, drove the car at a high rate of speed through a flooded portion of the road so that the trap door in the floor sprang open admitting water, . which frightened the plaintiff so that she fell into the uncovered space.
    Appeal by the plaintiff, Josephine Friedel, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
    
      Edwin F. Valentine, for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Carr, J.:

This action was brought in the County Court of Kings county to recover damages for personal injuries to the plaintiff while a passenger in one of the trolley cars of the defendant on the night of August 24, 1907.

At the close of the plaintiff’s testimony her complaint was dismissed, on the ground that she had faffed to make out a cause of action. Taking the evidence offered by the plaintiff in its most favorable aspect, her proofs go to show that while she was a passenger on one of the trolley cars of the defendant on. Cypress avenue in the borough of Brooklyn, a trap door in the floor of the car sprang open and a volume of water poured in and splashed over plaintiff and other passengers, and that she thereupon became frightened, arose in her seat, and in her fright fell into the space previously covered by the trap door, and suffered more or less physical injuries. It appeared likewise, as a part of her proof, that on the night in question it had been raining heavily and that that portion of the street where the accident took place was below grade, and because of lack of proper sewer facilities was subject to flooding whenever there was a considerable rain storm; that this condition had existed for a very long time, and that when the trolley car approached the spot in question it was operated at such a rate of speed that it rocked from side to side.

It seems to us that under these circumstances it was a ques- • tion of fact for the jury whether the motorman should not have anticipated the presence of a large body of water at this spot in view of the fact that water did accumulate there after every heavy rain storm, and whether with such anticipation it was not negligent for him to run his car into such a body of water at such a rate of speed as to bring the floor of his car in very violent contact with the water and thus.' produce the result which happened. The presence of the trap door was not in itself an act of- negligence, nor might the fact that water came into the car constitute negligence on the part of the defendant. But it seems quite plain that the cause of the trap door springing up so violently was the great force with which the car was brought in contact with the body of water then flooding the spot in question. If the motorman was bound to anticipate the presence of water on the street at that place, as it usually happened after a heavy rain storm, then it is a question whether it was the exercise of due care for him to drive his car into that body of water under such circumstances as to bring about a violent contact with it.

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

Jenks, P. J.,- Thomas, Woodward and Rich, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the event.  