
    Bernard Frauhauf, Appellant, v. The Interborough Rapid Transit Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions for personal injuries — Sufficiency of evidence as to negligence — Setting down passengers.
    Where plaintiff, a passenger on defendant’s elevated street railway, testifies in an action for personal injuries that when the car stopped he got up ready to walk out, and it appears that just as he reached the exit door the train started with a sudden jerk causing the door to close and injure his finger, it will be presumed, in the absence of evidence to the contrary, that the guard observed the movement of the plaintiff toward the door; and the circumstances import plaintiff’s freedom from contributory negligence and the starting of the train is evidence of negligence on the part of the defendant which should go to the jury.
    
      Appeal by the plaintiff from a judgment for costs in favor of defendant upon the dismissal of the complaint, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    Mark Charles Platt, for appellant.
    Charles A. Gardiner (Alfred E. Mudge, of counsel), for respondent.
   Gildersleeve, J.

The action is to recover damages for personal injuries. The plaintiff was a passenger upon one of defendant’s cars. When the train stopped at Chambers street station, plaintiff arose from his seat and proceeded to leave the car. Just as he reached the doorway the car started with a sudden jerk, threw the plaintiff forward and, to save himself from a fall, he put his hand on the door-jamb. The movement of the car caused the door to close and injure the plaintiff’s finger. The plaintiff was nonsuited. When we place upon the evidence, as the law requires, a construction most favorable to the plaintiff, and consider the reasonable inferences that may properly be drawn therefrom, we must conclude that the plaintiff was free from contributory negligence ; that the starting of the car was the proximate cause of plaintiff’s injuries, and that the defendant was negligent in starting the car before plaintiff had been afforded a reasonable opportunity to alight. It is defendant’s claim that the .foregoing principle does not apply for the reason that the guard was not aware of the plaintiff’s desire to disembark. True, there is no direct evidence that plaintiff signalled or told the guard of his intention to get off. The plaintiff does testify, however, that, when the train stopped, he got up ready to walk out; and it appears that he reached the exit door when the train started with a sudden jerk. In the absence of any evidence to the contrary it must be presumed that the guard observed the movement of the plaintiff toward the door. If he did not, he omitted to do what he should have done and neglected his duty. The conduct and movement of the plaintiff was a manifestation to the guard of his intention and desire to depart from the car at that time and place; and it was the duty of the defendant not to. start the train, until the plaintiff had been given a reasonable opportunity to leave the car. The starting of the train under the circumstances was evidence of negligence. Section 138, article 5, of the Bailroad Law, being chapter 565 of the Laws of 1890, is as follows: “ Trains to Come to Full Stop, etc. All trains upon elevated railroads shall come to a full stop before any passenger shall be permitted to leave such trains; and no trains on such railroad shall be permitted to start until every passenger desiring to depart therefrom shall have left the train, provided such passenger has manifested his or her intention to so depart by moving toward or upon the platform of any car.” The learned trial judge held that there was no proof that the defendant’s servants were apprised of the intention of the plaintiff to leave the car, after he had started from his seat, and no proof how the door swung closed. To this ruling the plaintiff duly excepted. For the reasons stated above the case was one for the jury and it was error to dismiss the complaint.

Fitzgebald and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  