#### Barnett Schiller, Appellant, *v.*The Dry Dock, East Broadway & Battery Railroad Co., Respondent.

(Supreme Court, Appellate Term,

February, 1899.)

negligence — Erroneous dismissal of an accident case on the plaintiff’s proof.

It is erroneous to dismiss the complaint, on the plaintiff’s case, upon the ground that the defendant has not been shown negligent, where the proof is that after the plaintiff, who was a passenger, was infirm upon his legs and used a cane, had caused a street car to be stopped and while he had one foot on the step of the car and one foot on the ground, the conductor rang the bell and the car started again and that thereupon the plaintiff fell down and was injured.

Appeal by the plaintiff from a judgment dismissing the complaint of the plaintiff, with costs rendered in the Municipal Court, fifth district, New York city.

The action was brought to recover damages for injuries alleged • to have been received through the negligence of the defendants.

Otto H. Droege and Henry L. Franklin, for appellant.

Hoadly, Lauterbach *&*Johnson, for respondent.

Freedman, P. J.

This action was tried by a justice of the Municipal Court and a jury, and at the close of plaintiff’s case the defendant moved for a dismissal of the complaint on the ground that the plaintiff had been guilty of contributory negligence and that the evidence was insufficient to establish defendant’s negligence.

The court granted the motion without assigning any reason, and the plaintiff duly excepted. The plaintiff then moved for a new trial under section 999 of the Code. The motion was denied and the plaintiff duly excepted.

Thereafter an appeal was taken. On the argument of the appeal no attempt was made to sustain the judgment on the ground that the plaintiff had been guilty of contributory negligence, and, consequently, the only question' left for review relates to the sufficiency or insufficiency of the evidence on the question of defendant’s negligence. The motion for a dismissal of the complaint was made at the close of the plaintiff’s case. In such a case the testimony of the *393plaintiff and his witnesses must he taken by the court as true and construed in the light most favorable to the plaintiff, and the plaintiff is entitled to the benefit of all the inferences which, if the case were submitted to the jury, he might properly ask the jury to draw in his favor from the testimony. It is only after the application of the rule as stated, there is not sufficient evidence upon which the jury might render a verdict, that the court is authorized to grant a nonsuit. These rules have been reiterated so often and are so well settled that they require no citation of authorities to sustain" them. It, therefore, remains to be seen what plaintiff’s evidence under these rules amounted to at the time he rested his case.

The action was brought to recover damages for personal injuries sustained by the plaintiff in attempting to alight from one of the cars of the defendant.

At that time the relation of carrier and passenger existed between the parties. The defendant owed to the plaintiff the duty to cany him safely to his destination which included the duty to give him a reasonable opportunity to alight from the car. On approaching a certain point the plaintiff requested the conductor to stop the car and the bell was rung for that purpose and the car did stop. So far all the testimony agrees. The plaintiff then proceeded to- alight and while he had one foot on the step of the car and the other on the ground, the car, according to plaintiff’s testimony, started again.

In this statement the plaintiff stands corroborated by two^ witnesses. The plaintiff, however, was infirm upon his legs and used a cane, and from this circumstance and the fact that, after having testified to being thrown off by the premature starting of the car, in the course of his cross-examination, several times said that he “ fell off ”, the defendant insists that the plaintiff fell off the car by reason of his infirmity and not by reason of the premature starting of the car. This is not the most favorable, but the most unfavorable interpretation of plaintiff’s testimony, for he- persisted in adding as often as he got a chance, not only that the car had started again, but also that the start occurred after the conductor had rang the bell to go ahead and that at that moment he still had one foot on the step-. Infirm as the plaintiff may have been, the defendant nevertheless owed him the duty to give him a reasonable opportunity to alight, and, consequently, upon the facts as stated there was sufficient evidence to cany the case to the jury and the jury should have been left to determine whether in point of fact the plaintiff’s injuries were caused by the premature starting of the *394car while lie was in the act of getting off or by a fall caused solely by his own infirmity. Time, in actions to recover damages by reason of the alleged negligence of the defendant, the rule is well settled that a plaintiff cannot be permitted to leave his case in a position as consistent with the exercise of due care as with negligence, hut this rule was satisfied in the case at har by testimony to the effect that in any aspect of the case the .car was started again by the conductor "before the plaintiff was fairly off. As the case "stood when the plaintiff rested there was sufficient testimony, if true, to warrant the jury in rendering a verdict for the plaintiff, and. the credibility of the testimony should have been submitted to the jTMy-

The judgment must' be reversed and a new trial ordered, with costs to the appellant to abide the event.

MacLean and Leventritt, JJ., concur.

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