Second Department, June, 1906. [Vol. 113. That as the fall of the plaintiff and the injury by the defendant were separated in time, they did not constitute an indivisible transaction so that as a matter of law the fall of the plaintiff must be considered the proximate cause of the injury. That question was for the jury. APPEAL by the plaintiff, Alida H. Gray, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 14th day of June, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Orange Trial Term, and also from an order entered in said clerk's office on the 19th day of June, 1905, denying the plaintiff's motion for a new trial made upon the minutes. John C. R. Taylor, for the appellant. Richard Reid Rogers, for the respondent. HOOKER, J.: This is an appeal by the plaintiff from a judgment of the Trial Term entered upon a verdict in favor of the defendant directed by the court at the close of the whole case. The facts to be deduced from the evidence most favorable to the plaintiff are as follows: The plaintiff was a passenger on a train of the New York, Ontario and Western railroad, which stopped at the station in Middletown, N. Y.; she desired to alight there, and stepping out on the platform, started to descend the stairs leading from the car platform to the asphalt floor of the station. In some way which is unexplained, and which she says is a mystery to her, she missed her footing and fell from the second step to the pavement below at the side of the train, alighting in a more or less prostrate manner; when she struck the ground she endeavored immediately to arise, observing approaching her along a line parallel to and within a foot or two of the side of the train from which she had come, a four-wheeled express truck owned and used by the Adams Express Company, of which this defendant is president; the servant of the express company, who was propelling the truck, was about three feet distant from her at the time she struck the station floor; he was holding its handle or tongue, and this was between three and four feet long. He was proceeding at a rapid walk. There was no room to allow his turning into the space between the plaintiff's prostrate form and the car, App. Div.] Second Department, June, 1906. but there is no evidence that there was any obstruction to prevent turning the truck in the opposite direction. Before she was able to get out of the way, one of the front wheels of the truck struck her body over the region of the lower ribs, and she sustained the injuries for which she seeks to recover in this action. It may be assumed, so far as the discussion in this case is concerned, that the plaintiff was guilty of negligence in falling from the car steps; it is said, however, that inasmuch as she fell upon the spot where, had she alighted safely, she would have been standing, and inasmuch as she was invited by the railroad company to alight from the train at that stop, hence she could not be charged with negligence in being there, and it matters not whether she walked off the train or fell off. And yet, if she had been standing where she lay, she would not have received the injuries of which she now complains, even though the truck had come in contact with her body. The wheel of the truck struck her over the region of the lower ribs. This would have been impossible had she been standing. Imagination might picture injuries to her lower extremities, but under the doctrine announced in Laidlaw v. Sage (158 N. Y. 73) she could not recover for the injury she sustained unless it appears with reasonable certainty she would have sustained the same injuries had the accident occurred without her negligence. This brings us to consider the question whether her negligence was contributory to or the proximate cause of the injury. This record involves the application of the exception to the rule which precludes recovery where the plaintiff is negligent, and is to be found in cases where the defendant might by the exercise of reasonable care and prudence have avoided the injury. (Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Button v. Hudson River R. R. Co., 18 N. Y. 248; Austin v. New Jersey Steamboat Co., 43 id. 75; Silliman v. Lewis, 49 id. 379; McKeon v. Steinway R. Co., 20 App. Div. 601; Rider v. Syracuse R. T. R. Co., 171 N. Y. 139; Wasmer v. D., L. & W. R. R. Co., 80 id. 212; Costello v. Third Avenue R. R. Co., 161 id. 317.) Whether an act is the proximate or remote cause of an injury is ordinarily a question of fact for the jury and not to be decided as a question of law by the court unless in a clear case. (Costello v. Third Avenue R. R. APP. DIV.-VOL. CXIII. 31 Second Department, June, 1906. [Vol. 113. Co., supra, 323.) Adopting the view most favorable to the plaintiff, the wheels of the truck, unloaded except for a small package, were six or seven feet distant from her at the time she fell. The servant of the express company was moving towards her at a rapid walk. Under these circumstances the jury might properly have found that the defendant negligently, if not wantonly, ran the plaintiff down. One conveying a truck through a railroad station is bound to look where he is going and especially so when he is proceeding within a foot or two of the side of a train which has just stopped for the purpose of discharging passengers. It seems to us that it was within the bounds of reasonable physical effort for him to have been able, either by stopping the progress of the truck or -turning it abruptly to one side, to prevent its coming in contact with the plaintiff's prostrate form. At least, sufficient was shown to present the question as one of fact for the jury as to whether or not, by the exercise of ordinary prudence and care, the defendant could have prevented the serious consequences, after defendant's servant discovered or should have been aware of the presence of the plaintiff on the floor of the station. Sufficient time elapsed and there was sufficient space traversed by the wheels of the truck to present this question as one of fact for the jury's consideration. We are not unmindful of the decision in Rider v. Syracuse R. T. R. Co. (supra). There the plaintiff's intestate drove upon the track in front of the defendant's electric car approaching at a rate of speed of from six to nine miles an hour. The car struck the rear wheel of the vehicle just before it cleared the last track, and the motorman neglecting to stop the progress of the car, pushed the wagon forward twenty to thirty feet where it finally capsized, and the plaintiff's intestate, the driver, who was uninjured until the tipping over of the wagon, was then thrown to the pavement and received the injuries from which he died. The Court of Appeals in that case held, by a divided court, that the negligence of the plaintiff's intestate in driving upon the track was the proximate cause of his injuries. The prevailing opinion states: "The practical result of this theory is to hold that at the moment of the first contact the negligence of the deceased was proximate and contribu tory, while a moment afterwards it became remote and immaterial. This involves a refinement of reasoning and a process of speculation App. Div.] Second Department, June, 1906. that is scarcely practical or possible in the determination of the rights of parties in controversies of this character. It permitted the jury to divide a transaction which was in itself indivisible, and to attribute the injury to the conduct of the motorman after the first contact without regard to the negligence of the driver in creating the situation." The case under consideration is to be distinguished from the Rider case. The truck had never been in contact with the plaintiff's person until the actual injury was finally sustained. The transaction was not indivisible. The plaintiff's fall preceded her being run into by a period of time long enough for the defendant's employee to discharge the duty of prompt action which the circumstances required. Our opinion is that the record presents a case where the plaintiff has the right to have the question submitted to the jury of whether or not her act in falling was the proximate cause of the injury. The judgment and order should, therefore, be reversed. JENKS, RICH and MILLER, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event. LUDVISKA H. LARSEN, as Administratrix, etc., of ROGNALD JOHN LARSEN, Deceased, Appellant, v. THE UNITED STATES MORTGAGE AND TRUST COMPANY, Respondent. Trial Second Department, June 8, 1906. when a former order setting aside a verdict for the plaintiff was affirmed only on condition that defendant pay costs the trial court should not nonsuit on same evidence at second trial. Although the Appellate Division affirms the order of the trial court made in an action for negligence, setting aside a verdict for the plaintiff as against the weight of evidence, and granting a new trial, when such affirmance was made on the condition that the defendant pay the costs of trial or judgment be entered on the verdict, it is tantamount to a decision that the verdict was warranted by the evidence and it is error for the trial court to nonsuit on the same evidence at the second trial. APPEAL by the plaintiff, Ludviska H. Larsen, as administratrix, etc., of Rognald John Larsen, deceased, from a judgment of the Second Department, June, 1906. [Vol. 113. Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of November, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. Leo G. Rosenblatt, for the appellant. George Gordon Battle [Frederick E. Fishel with him on the brief], for the respondent. HOOKER, J.: The plaintiff has sued to recover damages for the death of her deceased husband, as the administratrix of his estate, on the ground that the death was caused by defendant's negligent operation of an engine upon a tramway. Upon the first trial the plaintiff had a verdict, which was set aside by the trial court upon the grounds that" the verdict was against the evidence and the weight of the evidence, and that the defendant herein is sued as an individual, and the plaintiff failed to prove any act of negligence on the part of the defendant as an individual." An appeal from the order granting a new trial came to this court. That order was affirmed. (See 104 App. Div. 76.) The new trial, however, had been granted without the condition that the defendant pay costs, and this court modified the order so as to make the affirmance conditional upon the payment by the defendant of the costs of the trial. The order of this court also provided that on failure to comply with such conditions, the order appealed from be reversed and judgment unanimously directed on the verdict. On the second trial, now under review, the evidence introduced on behalf of the plaintiff was substantially the same as that which was received upon the first trial, but the learned Trial Term granted the motion for a nonsuit at the close of the plaintiff's case, stating: "This case has been tried before and been on appeal to the Appellate Division. The Appellate Division has applied to it the strict rule applicable to steam railroads in the open in respect to a person looking each way before stepping onto the track, and I am bound by that decision of the Appellate Division, and I dismiss the case.” The effect of the former decision of this court has been misjudged. The new trial was granted on the two questions that the verdict was against the weight of evidence, and that the defendant was |