Robert Johnston, Respondent, v. New York City Railway Company, Appellant

Robert Johnston, Respondent, v. New York City Railway Company, Appellant. Second Department, June 7, 1907. Negligence — trial — charge basing 1 recovery solely on plaintiff’s credibility. In an action based on the negligence of the defendant whereby the plaintiff was thrown from a car by the sudden starting thereof, it-is error to charge that the plaintiff must have the verdict if the jury believe his version, for the defendant’s liability is .not to be determined solely by the plaintiff’s credibility. Appeal by the defendant, the New York City Railway Company, from a judgment of the Municipal Court of the city of New. York,, borough of Queens, in favor of the plaintiff, rendered on the 9th day of November, 1906. ■ William E. Weaver, for the appellant. John Hetherington, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The action is for negligence. The testimony- for the plaintiff is as follows: He stood at a street corner in the borough of Manhattan, and when the open car of the defendant reached his standpoint it was stopped for passengers both to alight and" to board the car; of the latter class there were four or five, of whom he was the last.As he attempted to get on, he took hold of the rail by his-hand and put one foot on the step, when the car went on with full force, dragging him for half a block. The defendant was liable if, in. the absence of contributory negligence, it knew or should have known that the plaintiff intended to take passage, and, thereupon, if it did not afford to him a reasonable'opportunity to board the car 'in safety. (Sexton v. Metropolitan Street R. Co., 40 App. Div. 26.) But the question of the defendant’s negligence was not one of law,' even if the plaintiff’s version was credited. Hence the’ court erred whén it instructed the jury, under exceptions, both in the main .part of the charge and also thereafter when the -defendant.pointed; out the instruction, that the plaintiff must have the verdict if the jury believed his. version, for such instruction in effect required the jury to find the defendant negligent if the jury believed the plaintiff. In.fine, the defendant’s liability' was to be determined alone, by the plaintiff’s credibility. This was reversible error' under the doctrine of Kellegher v. Forty-second St., etc., R. R. Co.. (171 N. Y. 309). . There must be a new trial. Woodward, Hooker, Gaykor and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new'trial ordered, costs to abide the event..