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in the act of descending from the rear platform, the car started suddenly and she fell and was injured.

By other evidence, which is uncontradicted, it is shown that the conductor, at the time, was in the car collecting fares and transfers.

There is nothing to indicate that either he or the motorman knew of the plaintiff's intention to get off the car. At the close of the case the plaintiff testified: "There is the regular transfer station and I know that, and that car stopped without notice". She does not, however, state that the car had yet reached its regular stopping place. The contrary seems to have been the fact.

The witness Sinclair fairly well explained the situation, and his testimony shows not only that the car had not yet reached its regular stopping point, but why it slowed down, or, if we accept the testimony of the plaintiff and her wit ness, stopped, where it did. Sinclair testified: "I looked out to see if it was near the stopping place at Eighth Avenue Circle, and I saw a car standing in front, and the motor:nan slowed down until the car in front would have a chance to pull up; and, while coming to a slow down, the car in front started, and he put on a little increased power to get to the stopping place. While he was slowing down I heard a commotion," etc., the commotion referred to being caused by the fall of the plaintiff and the movement and outcry of her fellow passengers and of persons on the street.

Conceding the truth of the evidence on behalf of the plaintiff, namely, that the car came to a full stop and then started again suddenly, there is no proof of negligence on the part of the conductor or motorman. They were not aware of the plaintiff's purpose to descend and the car had not yet reached its regular stopping place. We are not prepared to hold that a quick start, under such circumstances, is of itself negligence.

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

GREENBAUM, J. (concurring). The case was tried by plaintiff upon the theory that defendant's car had been

Supreme Court, Appellate Term, February, 1906. [Vol. 49

brought to a full stop when it neared or reached the Columbus monument on Fifty-ninth street and that while the plaintiff was in the act of alighting, after the car had come to a full stop, it was suddenly and without warning to her started, with the result that she was thereby thrown to the ground and injured.

On the part of defendant, it was shown that the plaintiff did not attempt to get off, after the car had stopped, but that she stepped off while the car was in motion and before it had been brought to a stop.

The clear cut issue of fact thus presented was whether the car had actually come to a stop when the plaintiff had begun to alight, or whether it was then in motion and slowing up.

Unless we are prepared to reverse the judgment because it is against the weight of evidence, it seems clear to me that the circumstances under which the plaintiff asserts she attempted to get off the car were sufficient to warrant a jury in finding that the conductor of the car should have anticipated that a passenger might attempt to alight.

The proofs in the case do not establish that the car came to a momentary stop by reason of a temporary exigency, nor that the place where plaintiff claims the car stopped when she attempted to alight was not at or near the place where defendant's cars customarily stopped.

There is nothing in the record to indicate that the defendant desired the trial justice to explain to the jury that actual or implied notice of the passenger's intention to alight must be established by the plaintiff or to have the jury pass upon the question as to whether or not the place where plaintiff claims that the car came to a full stop was the regular stopping place.

No issue was presented that the car had been momentarily stopped before reaching the customary stopping place and that the accident to plaintiff happened in her attempt at that instant to leave the car.

Both parties tried the case upon the theory that the issue between them was as to whether the car had first stopped and then suddenly started up before plaintiff could safely

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alight, or whether it was in continuous motion at the time plaintiff started to get off the car and that it did not come to any stop until after plaintiff fell; and I do not think that this court should now hold, as matter of law, that plaintiff failed to establish any cause of action.

I am, however, of the opinion that the evidence largely preponderates in favor of defendant and, for that reason, the judgment should be reversed.

SCOTT, J. (concurring). I am unable to find any evidence of negligence on the part of the defendant. The negligence alleged is that "the conductor in charge of said car failed to give the plaintiff a reasonable opportunity to alight from the same". The conductor can scarcely be charged with negligence in this regard, unless he had notice that a passenger intended to alight, or the stoppage was under such circumstances that he should have anticipated that a passenger might attempt to alight. Grabenstein v. Metropolitan St. R. Co., 84 N. Y. Supp. 261. There is no conten tion in this case that the conductor had any actual notice that plaintiff proposed to alight from the car. If the car did actually stop, and the stoppage was under such circumstances that the conductor or motorman should have anticipated that a passenger might attempt to alight, the burden was on the plaintiff to show that such circumstance existed. This she failed to do. For all that appeared, the stoppage may have been merely a momentary check resulting from some exigency of the traffic. I am also of the opinion that the evidence largely preponderated in favor of defendant's contention that the car had not, in fact, come to a stop when plaintiff undertook to alight.

I agree that the judgment and order should be reversed.

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

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Oscar G. Guyon, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Appellant.

(Supreme Court, Appellate Term, February, 1906.)

Damages - Evidence as to damages - Evidence in action for personal injuries: Instructions — As to damages.

Where, in an action for personal injuries received by plaintiff while attempting to board a railway car, the only evidence as to his earnings at the time of the accident is his own testimony, which on his cross-examination tended to show that he was not earning so great a sum as he testified to on his direct examination, the ques tion should be determined by the jury; and it is error to charge that, if they found for plaintiff, they must award him for “loss of time" the amount stated by him on his direct examination.

The opinion of a physician as to the reasonable value of his services rendered to plaintiff is merely advisory and its weight is for the determination of the jury; and a charge which, in effect, instructs them that they must be governed thereby is clearly erro

neous.

APPEAL by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of The Bronx, in favor of the plaintiff, upon a trial had before the court and a jury; and also from an order denying the defendant's motion for a new trial, made on the ground of fraud and newly discovered evidence.

George H. Yeaman (H. F. Ives of counsel), for apFellant.

House, Grossman & Vorhaus (James F. O'Neill of counsel), for respondent.

GIEGERICH, J. This action was brought to recover damages for personal injuries, claimed to have been received by the plaintiff at the corner of Patchen avenue and Halsey street, borough of Brooklyn, on the 3d day of June, 1905, while in the act of boarding one of defendant's cars, after it had stopped.

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A verdict in favor of the plaintiff for $500 was rendered by the jury; and the defendant, in bringing on this appeal, states in the brief that the only questions raised are those presented by the exceptions taken to the justice's charge.

Among the exceptions so noted, is one to an instruction substantially to the effect that, if the jury found that the accident happened, they must, at all events, bring in a verdict for the plaintiff for $360, for loss of earnings and $50 for his physician's services.

The plaintiff's counsel seeks to uphold such an instruction on the ground that there is no contradiction of the plaintiff's testimony; that, for a number of weeks just previous to the accident, his earnings as a tinsmith had averaged eighteen dollars per week; that he had been disabled from work for a period of twenty weeks, and that there is no contradiction of the physician's testimony that his services were reasonably worth fifty dollars.

While it is true that the defendant did not call any witness to contradict the testimony of the plaintiff upon the point referred to, the record, nevertheless, discloses that the testimony of the plaintiff, upon cross-examination, tended to show that he was not earning so great a sum as the one testified to by him on his direct examination and which was relied upon by the justice in giving the instruction complained of.

The rule applicable to the credibility of a witness who is a party to the action was clearly laid down in the recent case of Hull v. Littauer, 162 N. Y. 569, where the court, at page 572, said: "Generally, the credibility of a witness, who is a party to the action, and, therefore, interested in its result, is for the jury; but this rule, being founded in reason, is not an absolute and inflexible one. If the evidence is possible of contradiction in the circumstances; if its truthfulness, or accuracy, is open to a reasonable doubt upon the facts of the case, and the interest of the witness furnishes a proper ground for hesitating to accept his statements, it is a necessary and just rule that the jury should pass upon it. Where, however, the evidence of a party to the action is not contradicted by direct evidence, nor by any