Opinion
June, 1907.
William E. Weaver, for appellant.
House, Grossman Vorhaus, for respondent.
The plaintiff has recovered a judgment awarding him damages which he claims he sustained through the alleged negligence of the defendant. The plaintiff claimed the car had been brought to a stop and, while in the act of attempting to board it, it was suddenly started and that he was thrown and sustained the injuries in reference to which he testified. The defendant contended that the car was in motion; that it had not come to a stop and that the plaintiff ran after it and, in attempting to board it while it was in motion, was injured. The learned trial justice charged the jury as follows: "As a matter of law it was the duty of the company to give the man a fair and reasonable chance to get aboard the car; and if, without his fault, the accident occurred through the negligence of the defendant, your verdict would have to be for the plaintiff." To this part of the charge the defendant duly excepted. We think that this part of the charge was erroneous and that a new trial should be ordered. The rule laid down by the learned trial justice was too broadly stated. The duty, which the justice declared the defendant was under, did not arise until the car had been brought to a stop or the plaintiff had been invited to board it. The jury were justified in drawing the inference, from the charge made by the trial justice, that the defendant was negligent in not bringing the car to a stop so that the plaintiff might have "a fair and reasonable chance to get aboard the car." In view of the issue between the parties as to the manner in which the accident happened, we think that the error committed was prejudicial to the defendant.
GILDERSLEEVE and PLATZEK, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.