Mary A. Woods, an Infant under the Age of Fourteen Years, by Bridget Woods, Her Guardian ad Litem, Respondent, v. New York and Queens County Railway Company, Appellant

Mary A. Woods, an Infant under the Age of Fourteen Years, by Bridget Woods, Her Guardian ad Litem, Respondent, v. New York and Queens County Railway Company, Appellant. Second Department, October 22, 1908. Trial—negligence — injury to passenger while boarding car—erroneous charge. In an action to recover for personal injuries received by the alleged starting of a surface car while the plaintiff was attempting to board the same, where the defendant has given evidence that the plaintiff, being within the car before it startedpattempted to jump, off, it is error to charge that a verdict must be for the plaintiff if the car started and threw her off while she was in the act of boarding it, for, standing alone, the charge takes the questions of contributory-negligence and the negligence of the defendant from the jury. sSuch error is not cured by a subsequent charge that the defendant Was negligent if it did not allow the plaintiff a reasonable time to board the car, and that she was guilty of contributory negligence if she attempted to get off while the car was in -motion, as the original charge holding the defendant liable as a matter of law was not modified thereby. Appeal by the ■ defendant, the New York and Queens. County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Kings on the 17th day of January, 1908, upon the verdict of á jury for $2,500, and also from,an order entered in said clerk’s office on the 23d day of May, 1908, denying the 'defendant’s motion for a new trial made upon the minutes. Vine H. Smith [Bayard H. Ames and James L. Quackenbush with him on the brief], for the appellant. . Henry M. Dater [George F. Elliott with him on the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff sues to recover damages for personal injuries which, she asserts, were caused by the negligence of the defendant’s servants in suddenly starting a car which she was attempting to board. Her version of the accident is that she had put one foot on the running.board and had taken hold of the handle or stanchion at the . side of the car, when it suddenly started and after going about six-, teen feet threw her to-the ground. • The defendant’s evidence tended to show that the plaintiff was well within the car before it started and that she attempted tó jump off in order to rejoin some of her companions who had not succeeded in boarding the car. The court charged the jury in substance that, if the car started while the plaintiff was in the act of boarding it and threw her off, the verdict must be for the plaintiff.. There can be no doubt that standing alone ,such a charge presents reversible error. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309; Johnston v. New York City R. Co., 120 App. Div. 456 ; Ward v. Metropolitan Street R. Co., 99 id. 126.) The respondent contends that the statement in question as modified by the other parts of the charge did not mislead the jury. The court did charge as an abstract proposition of law that the defendant was negligent if it did not allow the plaintiff a reasonable time to board, the car and that the plaintiff was guilty of contributory negligence if she attempted to get off the car while it was in motion. Those instructions, however, did not in any way modify the statement in effect that the plaintiff was free from contributory negligence and that the defendant’s servants were guilty of negligence as matter of law in case the car started while the plaintiff was in the act of boarding it; whereas it was for the jury to draw the inferences of the defendant’s negligence and the plaintiff’s freedom from contributory negligence&from the facts which they deemed established by the evidence. The judgment and order must be reversed. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.