Page v. United Traction Co.

161 A.D. 383, 146 N.Y.S. 530, 1914 N.Y. App. Div. LEXIS 5348

Opinions

Kellogg, J.:

The plaintiff alleges in substance that she was a passenger on the defendant’s car, that she signaled the conductor that she wished to alight, that the car stopped at a point named where, in the course of repairing the street, a hole had been made. As she was “about to alight” from the car she stepped into the hole and received her injury, that the injury was due to the carelessness and negligence of the defendant’s officers and servants in the premises and without any negligence on her part.

Upon demurrer the complaint is to be favorably construed for the pleader. It means that when signaled to stop the car made the stop at a place where there was a hole in the street and that in alighting from the car the plaintiff, without fault on her part, stepped into the hole. I think it alleges a cause of action.

The judgment should, therefore, be reversed, with' costs to the appellant to abide the event, and a new trial granted.

All concurred, except Woodward, J., dissenting in opinion.