The plaintiff was a passenger on one of defendant’s north-bound Lexington avenue cars, which he took at Third street for the purpose of going to Forty-second street. The testimony offered by him tended to establish that as the car approached Fortieth street he notified the conductor that he desired to get off at Forty-second street; that the car as it approached Forty-second street slowed up; that he thereupon left his seat and went to the rear platform, preparatory to getting off; that on the south side of Forty-second street the car ran very slowly, and several persons jumped off; that while thus running the conductor said to plaintiff, “ Are you going to get off the car ? ” and he replied, “ I am when it stops; ” that thereupon, without further Avarning to him, the car was suddenly started and he was thrown to the street and injured.
The testimony on the part of the defendant was to the effect that the plaintiff stepped off the car while it was crossing Forty-second street, and in this way the injuries Avere sustained. There was no dispute between the parties as to the place in Forty-second street where plaintiff was injured, substantially the only dispute being whether the car was suddenly started after it had commenced to slow up in obedience to his request to be let off, or whether lie stepped off while it was in motion.
■ The court did not instruct the jury that there was no invitation to the plaintiff to alight, and had it done so it would have been error. That was a question of fact which was properly left to the jury. *320They found in favor of the plaintiff’s contention, and there is sufficient evidence to sustain their finding. The ■ case, therefore, is brought within the principle laid down in Crow v. Metropolitan Street R. Co. (70 App. Div. 202; affd., 174 N. Y. 539).
I vote to affirm the judgment and order appealed from.
Patterson, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.