#### BENJAMIN v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

November 6, 1903.)

1. Appeal from Nonsuit—Favorable Inferences.

Where a nonsuit is granted at the close of plaintiff’s case, plaintiff on appeal is entitled to every fact that the jury could have found from her evidence, and to all the favorable inferences therefrom; and, if two inferences arise, one favorable and the other unfavorable, only the favorable one can be considered.

*4592. Street Railway—Passenger—Attempt to Board Car—Injury—Case for

Jury.

Evidence in a suit by a passenger against a street car company for injuries received while attempting" to board a car *held,*sufficient to take plaintiff’s case to the jury on the issues of negligence and contributory negligence.

3. Same—Contributory Negligence—Question for Jury.

Contributory negligence is generally a question of fact, and it is only where it clearly appears from the circumstances,-or is proved by uncontroverted evidence, that the court can determine the question.

¶ 3. See Negligence, vol. 37, Cent. Dig. §§ 291, 333.

Appeal from City Court of New York.

Action by Jeanette Benjamin against the Metropolitan Street Railway Company. From a judgment for defendant, entered on a dismissal of the complaint at the close of plaintiff’s evidence, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

F. Angelo Gaynor and Bayard H. Ames, for appellant.

Gross & Sneudaira, for respondent.

FREEDMAN, P. J.

This is one of the ordinary actions brought to recover damages for defendant’s alleged negligence. The testimony of the plaintiff was uncontradicted, and her complaint was dismissed on the merits upon the close of the case on motion made by defendant’s counsel. The substance of plaintiff’s testimony is sub- ° stantially as follows: She was, on December 17, 1901, employed at Simpson, Crawford & Simpson’s, on Sixth avenue, and resided with her mother at No. 15 Avenue A. She left her home about 7:30 a. m., her' object being to reach Sixth avenue and Twenty-First street. She went down Avenue A until she came to Second street, going west to First avenue, where she could get a car which would transfer her to Sixth avenue. This car goes through First avenue at Second street. The plaintiff waited for a car, which was a horse car. As it approached, she signaled the driver, and the car came to a stop. She then describes what occurred as follows:

> “Then I went to get on, and, holding the rail of the car with my right hand, I had my right foot upon the first step of the car when the car started before I put my left foot on. The conductor was inside the car. He was not on the platform. The car started when I had my right foot on, and before I got my left foot on, and I fell after the car was started, and I was dragged some distance. * * * I fell upon my chest and upon my abdomen.”

On cross-examination she says:

> “It [the car] was standing when I got on with my right foot, and when I took hold of it with my right hand, my right foot was on. I took hold of the car, I say, with my right hand. Then I put my right foot on the step of the car. The weight of my body was on my left foot, which was still upon the ground, while I was in that position, the car started off. The car then started so quick that I could not let go. It would have broken my head if I had let go then. I could not let go without being hurt.”

She also testified, in answer to questions put by defendant’s counsel, “that just as I had put my right foot on the car the conductor rang *460the bell, and I was dragged upon the pavement.” She received injuries which, from the testimony offered, appeared to be quite serious.

In such cases the well-known rule of law is that, where a nonsuit is granted at the close of the plaintiff’s case, the plaintiff on appeal is entitled to every fact that the jury could have found from the evidence adduced by her, and to all the inferences intended thereby. Bruss v. Met. St. Ry. Co., 66 App. Div. 554, 73 N. Y. Supp. 256; St. John v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 241, 59 N. E. 3.

The respondent’s attorney, by selecting certain portions of the plaintiff’s testimony from which inferences might be drawn that would indicate that the plaintiff was not entirely free from contributory negligence, urges that the dismissal of the complaint was proper. That such is not the rule in cases of this kind should be known by the most inexperienced practitioner. If there are two inferences, one favorable and one unfavorable to the plaintiff’s case, in determining whether a dismissal of the complaint was right that inference must be followed which is favorable to the plaintiff. Handy v. Met. St. Ry. Co., 70 App. Div. 28, 29, 74 N. Y. Supp. 1079. There was sufficient testimony on the part of the plaintiff from which the jury could have found that the defendant was guilty of negligence and the plaintiff free from contributory negligence. The question of contributory negligence is generally one of fact to be determined by the jury, and is not within the province of the court. It is only where it clearly appears-.from the circumstances, or is proved by uncontroverted evidence, that the injured party has, by his own acts or neglect, contributed to the injury, that the court can determine that question. Handy v. Met. St. Ry. Co., 70 App. Div. 31, 74 N. Y. Supp. 1079.

Judgment reversed, and new trial ordered, with costs to appellant to abide the evént. All concur.