
    Jacob Egg, Respondent, v. Rochester Railway Company, Appellant.
    Fourth Department,
    November 14, 1906.
    Negligence — injury to person boarding car —charge restricting verdict to negligence of motorman-.
    In an action to recover damages for injuries which the plaintiff claimed were' caused by the negligent starting of defendant’s street car as the plaintiff was in the act of boarding it, when the judge charges that the recovery cannot be based upon any negligence of the conductor, a verdict for the plaintiff can only be sustained on the ground that the motorman was negligent, and where the accident occurred at the-rear end of the car and the evidence shows that the motorman did not start the car until he received the signal, the verdict-must he reversed.
    Appeal by the defendant, the Rochester Railway Company, from a judgment of the County Court of Monroe county in favor of the -plaintiff, entered in the office of the clerk of the county of Monroe on the 7th day of July, 1906, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 10th day of July, 1906, denying the defendant’s motion for a new trial made upon the.minutes.
    
      Cogswell Bentley, for the appellant. •
    
      Charles E. Callahan, for the respondent.
   Nash, J.:

The plaintiff attempted to board one of the defendant’s cars near the corner of Main street, East, and Clinton avenue, in the city of Rochester, -at a crosswalk which is the usual stopping place for cars going west on Main street.

The plaintiff testified that he reached the crossing about a quarter to five o’clock in the afternoon of the day on which he was injured,- and waited, for a car; that he raised his hand as the car was coming. “ I seen the street car, and when I raised up my hand to the street car there was nothing between us. I didn’t have any packages or bundles or anything in my hands at the time.' The car very nearly stood still. I think the car stood real still as I put one foot on the steps. * * * I took hold of the bar with my hand. I took hold of the rail with my right hand. * * * As I done that, the car went suddenly and throwed me down, and my leg got under the steps and it sprained it. The car went fast. It went sudden, and when the conductor seen I was dragging along, he stopped the car. I can’t tell how far I dragged along, seven, eight or ten feet or moré.”

He further testified on cross-examination as follows: “ When the car came along I was looking towards the motorman. I waved my hand to him. Q. Did-the motorman look at you ? A. That I don’t know. Q. Did he make any signal to you ? A. I didn’t see that. Q. Did the car come to a stop ? A. The car stopped, but they saw there was only one man getting on, and he motioned the car ahead. Q. You say the car had stopped? A. He didn’t stop exactly, but a child could run along with it; it was going along real slow as I described, and when I had my foot on it shot put. Q. Did you see the conductor as you started to board the car? A. The conductor was there. Q. Where? A. Behind, where lie belongs; in the rear vestibule; I don’t know which way he was looking. ■, Q. What was he doing? A. As he saw that I fell he gave a signal to stop the car and then got out and helped me in. He didn’t do anything when 1 started to get oil Q. Did you see anyone else in the rear vestibule ? A. I don’t remember. Q. Did you hear any signal given to start the ear; any bells rung ? A, I don’t know that. I don’t hear good anyway. Q. Did you seé the conductor give any signal as you started to get oil ? A. How can I see anything like that ? When they throw you down how can you see such stuff? Q. The question is repeated. A. That I don’t'know.”

Kirn,- a passenger, called by the defendant, testified that lie' stood in the rear vestibule of the car, between the door and the controller ; that the conductor stood just inside the door; that a young man got on there at the crosswalk, and that after the young man got on, the eohductor gave the signal to start the car; that after the car had started a man came out to the rear end of the car and got hold with Ids left hand, came from behind the car; that just as the car started this man came running from behind and grabbed hold of the rear handle and tried to get on, and had one foot on and it slipped off-;, that lie helped the man on and. hollered to the conductor to stop the car. .

The conductor testified that he was inside the car.; that there ivas no one else besides this young man spoken of, on the.crosswalk, or near it, at the time the car started on ; that he gave the signal for-the car to start and started forward in the car, when his. attention was attracted by-a call from the vestibule to stop the car, which he did, and went to the rear where he found the plaintiff who liad been helped aboard the car, and took his name.

The motorman testified that he saw the young man at the crossing and stopped the car for a complete stop about a second, and got the signal to go ahead. He was looking at the crossing'; did not see any one but the young man.

The court, at the request of the defendant, charged the jury that no recovery could be based on any negligence on the part of the conductor. As that was the law of the ca'se for the purpose of the trial the verdict of the jury must be regarded as based solely upon the negligence of the motorman, the only other person engaged in operating the car.' ,

The motorman could- not have been charged, upon the evidence, with any negligence. The accident occurred at the rear of the car, at a crossing, where it. was the duty of the motorman to start the car ahead upon receiving the conductor’s signal, which he did.

No negligence can be attributed to the act of the motorman in starting the car under the circumstances, and, therefore, the judgment entered upon the verdict must be reversed.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law aiid fact.  