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Cunningham v. Dry Dock, East Broadway & Battery Railroad

31 Misc. 471 Court N.Y. App. Term English

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p. 471
Catherine Cunningham, Respondent, v. The Dry Dock, East Broadway & Battery R. R. Co., Appellant.
(Supreme Court, Appellate Term,
May, 1900.)

Headnote

Negligence — Erroneous charge as to liability to passenger injured while alighting from a street car, it being In dispulte whether the car had stopped.
Where the plaintiff alleges that she was injured because the defendant’s street car, after stopping, started suddenly while she was alighting, and the defendant alleges that she was injured by attempting to alight before the car stopped, it is erroneous for the court to refuse to charge that, if she alighted while the car was in motion, the defendant would not be liable.
Cunningham v. Dry Dock, 33. B. & B. It. K-. Co., 29 Mise. Rep. 772, reversed.
Appeal from an order and judgment of the General Term of the City Court of the city of Hew York, affirming a judgment of the City Court, entered upon a verdict of a jury.
p. 472
Hoadly, Lauterbach & Johnson (Eugene Treadwell and Henry Siegrist, Jr., of counsel), for appellant.
A. & O. Steckler, for respondent.

The plaintiff alleged in her complaint, and on the trial offered evidence tending to show, that, as she was about to alight from one of the defendant’s cars, which had been stopped for the purpose of permitting the plaintiff to alight therefrom, said ear was suddenly started again through the negligence of the defendant, and plaintiff was thrown to the ground and received injuries. The testimony on the part of the defendant tended to show that the plaintiff received her injuries while attempting to get off the car while it was still in motion; that is to say, the defendant’s testimony contradicted that of the plaintiff. Under these circumstances it was error for the court to refuse to charge that, if the plaintiff stepped off the car while the same was in motion, the verdict of the jury should be for the defendant. Patterson v. Westchester El. R. Co., 26 App. Div. 336 ; Kuhlman v. Met. St. R. Co., 30 Misc. Rep. 417 . Also see Savage v. Third Ave. R. R. Co., 29 App. Div. 556 ; Kelly v. Same, 25 id. 603 , and Anderson v. Same, 36 id. 309.

The judgment and order appealed from are reversed with costs, and a new trial ordered, with costs to appellant to abide the event.

Present: Tbuax, P. J., Scott and Dtjgbo, JJ.

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

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