Millar v. Nassau Electric Railroad

189 A.D. 748, 179 N.Y.S. 293, 1919 N.Y. App. Div. LEXIS 4747

Opinion

Per Curiam:

The learned trial court did not hold plaintiff negligent as matter of law in boarding this slowly moving car. He inclined to the opinion that plaintiff had not been invited to become a passenger. In view of the testimony of witnesses, and the defendant’s rule that cars should stop at this near corner where plaintiff stood, a question was presented for the jury, whether as the car came slowly to this intersection it would in fact stop to let plaintiff step on. (Morrison v. B. & S. A. R. R. Co., 130 N. Y. 166.) Plaintiff could not be held negligent as matter of law. (Eppendorf v. B. C. & N. R. R. Co., 69 N. Y. 195; Berry v. Utica Belt Line Street R. Co., 181 id. 198, 204.)

The judgment is reversed and a new trial granted, with costs to appellant to abide the event.

Jenks, P. J., Rich, Putnam, Kelly and Jaycox, JJ., concurred.

Judgment reversed and new trial granted, costs to appellant to abide the event.