147 N.Y.S. 1111 | N.Y. App. Div. | 1914
Judgement and order reversed and new trial granted, costs to abide the event. Upon a previous appeal in this case we decided that substantially the same evidence as that here presented on behalf of the plaintiff required submission to the jury of the question of defendant’s negligence. (158 App. Div. 169.) It is immaterial who gave the signal to stop the car. The evidence of plaintiff is that it did stop at Tenth street. It then became the duty of the conductor to afford plaintiff reasonable time and opportunity to alight, before giving the signal to start. The fact that the complaint alleges that such signal was given by the conductor, while the evidence may establish the fact that it was given by some one else under his authority, does not constitute a variance. (Bradbury Rules of Pleading, 8, subd. 5.) Jenks, P. J., Burr, Carr, Rich and Stapleton, JJ., concurred.