(dissenting) :
I think that the evidence of the defendant’s negligence in this case was sufficient to require its submission to the jury. Before the plaintiff left his seat and took his place upon the running board, he had notified the conductor that he desired to stop at the street which the car was then approaching. After reaching the running board he. signaled the conductor to stop, and the conductor responded to .this.signal by ringing the bell. The, motorman appears to have paid no attention to the bell, but went on over intersecting tracks at a speed sufficient to produce- “ a kind of a jerk and start,” which, according to the testimony of the witness J ohn A. Owens, “ fired ” the plaintiff right off into the street. The conduct of the plaintiff in getting down upon the running board as he approached' •the place where the- conductor knew he desired to stop, cannot be deemed contributory negligence as matter of law; nor was- there anything in his subsequent action which requires the légal inference that he was guilty of negligence contributing to the accident, although of course the jury, if the question had been left to them, might have found the plaintiff guilty of contributory negligence as' matter of fact.
. In view of the presumptions which prevail in favor of the plaintiff upon a nonsuit, I think a new trial should be granted.
Hirsohberg, J., concurred.
Judgment affirmed, with costs.