
    James Manning, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Second Department,
    April 29, 1910.
    Railroad—negligence — erroneous refusal, to charge.
    Where in an action to recover for personal injuries alleged to have been received" by a- passenger through the sudden starting of a street car- while" he was alight- ■ ing, the plaintiff’s testimony is controverted by evidence that lie was injured. • while attempting -to alight-against the caution of the conductor'while the car was in motion, it is error to refuse tó charge that the jury must find, for the defendant, if the accident happened as stated by the defendant’s witnesses.
    Hibschbebg, P. J., dissented.
    Appeal by the defendant, The Nassau Electric Railroad Co'iripáüy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of'the plaintiff, rendered on the ,28th day of June, 1909.
    
      Francis R. Stoddard, Jr., for the appellant. .
    
      James F. Lynch, for the respondent. ■ •
   Woodward, J.:

■ This is-an appeal from a judgment of the Municipal Court, entered upon the verdict of a jury, awarding the plaintiff $350 daniages in - an action for personal injuries.

The plaintiff was injured while a passenger on one of the defendant’s cars. The; complaint, simply alleges' that through'' the" rieglh geñce of the defendant-plaintiff was violently thrown and precipitated' from the car. The. specific act of' negligence is -not ‘pointed- out. On direct examination' the plaintiff testified that when oh Márcy avenue-“about, half á block from Stockton street, I "told the-conductor tó stop the car, that I wanted to get off at Stockton street; ¡ he gave the bell to the motormanto stop the car and the car was slowing-up and I came- out on the back platform and lie went inside and he gave two bells-again in quick succession and thrown-me right- off the car.” • On his -direct examination lie stated no cause for being thrown from the car except the ringing of the bells. On his cross-examination, in referring to the ringing of the two -bells, lie says, “that is what thrown me off — the jerk,” whether of the,bells or the car does not then clearly appear. The witness Johnson, however, testified to enough to make the plaintiffs case. He says: “I heard two bells and the car started up on a jerk and the man got thrown off on the side, of liis face.” The defendant’s conductor says that the car stopped at Floyd street,(which is the street before Stockton street), and that he did not give two bells after the car was in the center of the block, but from that.point the plaintiff was on the step, and. although he was cautioning him to wait until the car stopped, and had his hand on his shoulder, as the car approached the. near side of Stockton street and while it was'still in motion,-lie swung out and the conductor lost liis hold on him and he fell. He says the car did not start up with a jerk. The motorman says that in the middle of the block he got one bell, and began to slow down, the proper place to stop being on the far corner of Stockton street, and that he did not start up again. He came to a full stop at the far side of Stockton-street, and then found out that the accident had already happened. '. .

The defendant requested the court to charge “ if the jury believe that the accident happened in the way as testified by defendant’s witnesses, they' must find for the defendant.” This was refused, and the defendant excepted. This was a proper request, because if the accident happened in the way testified to by the defendant’s witnesses there was no possible inference of negligence on the part of the defendant to be drawn. The court had not covered the question in his main.charge. He had generally told them that the plaintiff must show that the accident happened through the negligence of’ the defendant, but he had not in express terms told them that there was" no negligence on the part of the defendant unless it resulted from suddenly starting the car forward. The defendant’s witnesses testified positively that it had -not been done. The defect in this charge was not alone that the court did not specifically say that no recovery could be had if the jury found the plaintiff guilty of contributory negligence, but that the court did not charge them specifically as to the absence of the defendant’s negligence.

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

Jenks, Burr and Thomas, JJ., concurred; Hirschberg, P. J., dissented.

Judgment and order of the Municipal Court. reversed and hew trial ordered, costs to abide the event. ■ .-  