
    (68 App. Div. 259.)
    NIES v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 17, 1902.)
    1. Appeal—Presumption. On appeal from a judgment of nonsuit plaintiff is entitled to the most favorable construction which the jury could properly have placed on the evidence.
    2. Street Railways—Negligence op Passenger. A passenger on an open street car, having rung for the car to stop, and assuming that it would stop at the nearest side of a street which it was approaching, stepped out on the footboard, and the jolting of the car on passing over intersecting tracks threw him from the footboard. There was no evidence that the crossing was made at unusual speed. There was a sign in the vicinity which said “Stop,” but it was not shown that the direction was to the motormen, or that it directed the car to stop at any particular point Ueld>, in an action for the injuries, that a nonsuit was proper.
    8. Same—Pleading—Evidence—Issues. An offer to prove that the condition of the tracks was bad where they intersected, and that by reason of such a condition plaintiff was thrown from the footboard, was properly excluded, no such negligence being charged in the complaint.
    Bartlett and Hirschberg, JJ., dissenting.
    Appeal from special term, Kings county.
    Action by Philipp Nies against the Brooklyn Heights Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
    Henry Escher, Jr., for appellant.
    I. R. Oeland, for respondent.
   WOODWARD, J.

It may be that, had the plaintiff offered evidence to show that the crossing was in such a condition that it was negligent to pass over it at a rate of speed maintained by the defendant, there would be some merit in the suggestion of error in refusing to permit evidence as to the condition of the crossing at Fifteenth street; but the plaintiff declared that it was his purpose to offer the evidence to show “that the condition of these tracks was bad, that they were in poor condition, and that it was by reason of that condition of the tracks that this man was thrown off in running across.” This negligence was not charged in the complaint, and the evidence was not proper for this purpose, though it might have been as bearing upon the manner in which the cars should be operated over the crossing. There is no evidence in the case that any one in the car was disturbed by the crossing; no evidence that the crossing was made at an unusual rate of speed, or without the exercise of that degree of care which the defendant was bound to exercise in taking care of its passengers who were occupying the places afforded for the accommodation of passengers, and we are of the opinion that there was no evidence upon which a jury might properly have found a verdict for the plaintiff.

The judgment appealed from should be affirmed, with costs. All concur, except BARTLETT and FIIRSCHBERG, JJ., who dissent.

WILLARD BARTLETT, J.

(dissenting). I think that the evidence of the defendant’s negligence in this case was sufficient to require its submission to the jury. Before the plaintiff left his seat and took his place upon the running board, he had notified the conductor that he desired to stop at the street which the car was then approaching. After reaching the running board, he signaled the conductor to stop, and the conductor responded to this signal by ringing the bell. The motorman appears.to have paid no attention to the bell, but went on over intersecting tracks at a speed sufficient to produce “a kind of a jerk and a start,” which, according to the testimony of the witness John A. Owens, "fired” the plaintiff right off into the street. The conduct of the plaintiff in getting down upon the running board as he approached the place where the conductor knew he desired to stop cannot be deemed contributory negligence as matter of law; nor was there anything in his subsequent action which requires the legal inference that he was guilty of negligence contributing to the accident, although, of course, the jury, if the question had been left to them, might have found the plaintiff guilty of contributory negligence as matter of fact.

In view of the presumptions which prevail in favor of the plaintiff upon a nonsuit, I think a new trial should be granted.

HIRSCHBERG, J., concurs.  