Opinion
November 19, 1909.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Don R. Almy, for the respondent.
This is a negligence action. The complaint is that, as the plaintiff was attempting to board one of the defendant's cars, it started before he had got in a position of safety. At the close of the plaintiff's case the court granted a nonsuit. The court denied the plaintiff's motion to reopen the case to put in additional evidence, but granted a new trial for the purpose of enabling the plaintiff to do that; and the complaint of the appellant on this appeal is that the trial court should not grant a new trial solely for the purpose of giving a party another chance to present his evidence. We think, however, that the order may be sustained for the reason that the plaintiff's evidence presented a question for the jury.
The plaintiff testified in substance that, as the car approached him, he signaled the motorman to stop, whereupon the car commenced to slow down and, as it reached him, had nearly come to a stop; that, while the car was thus moving very slowly and almost coming to a stop, he took hold of the stanchion, got both feet on the running board and was about to step up inside the car when the conductor rang the bell, the car started, his foot slipped and he fell and was dragged some distance.
The nonsuit was evidently granted upon the ground that there was no proof of the defendant's negligence, of any unusual movement of the car upon starting; but the negligence complained of was in accelerating the speed of the car at all before the plaintiff had got securely aboard. It has been held that the starting of a car before a woman passenger has obtained a seat presents a question for the jury. ( Dochtermann v. Brooklyn Heights R.R. Co., 32 App. Div. 13; affd., 164 N.Y. 586; Morrow v. Brooklyn Heights R.R. Co., 119 App. Div. 22.) Whatever be the rule in case the passenger is a man, he must at least be given an opportunity to get into a position of security; and the starting of the car or accelerating its speed while the passenger is still attempting to step up into the car and before he has got a firm footing presents a question for the jury. It is not claimed that it is contributory negligence as matter of law to attempt to board a street car just coming to a stop. (See Pfeffer v. Buffalo R. Co., 4 Misc. Rep. 465; affd., 144 N.Y. 636; Sexton v. Metropolitan Street R. Co., 40 App. Div. 26; Mulligan v. Metropolitan Street R. Co., 89 id. 207; Morrison v. B. S.A.R.R. Co., 130 N.Y. 166.)
The order should be affirmed.
HIRSCHBERG, P.J., BURR and RICH, JJ., concurred; WOODWARD, J., concurred in result.
Order affirmed, with costs.