FREEDMAN, P.J.
This is an action to recover damages for personal injuries, sustained through the alleged negligence of the defendant.
The plaintiff neither shows himself free from negligence, nor does he show that the defendant was guilty of negligence. His testimony is to the effect that he was standing on the southwest corner of Thirty-fourth street and Eighth avenue, waiting for a downtown car; that he saw one coming towards him; that he put his hand up as a signal to the car to stop; that the car began to slow down, but did not stop; that he then ran towards it, and that as it got below the crossing and while still in motion, he attempted to get on, and had one hand on the rail and one foot on the step of the car, when the car suddenly started and he was thrown to the ground and received the injuries complained of. It also appears from his testimony that the car had passed the downtown crossing.
There is no testimony showing that the car slowed down in response to the signal or call of the plaintiff, nor does it appear that either the gripman or the conductor became aware that the plaintiff desired, or was attempting, to board the car. For aught that appears, the slackening of the speed of the car while passing the crossing may have been due to a cause other than the signal of the plaintiff, and in the absence of proof that such reduction of speed was made in response to plaintiff's efforts to attract attention, he has no ground for assuming that such change in the speed of the car was made for his benefit or convenience.
It, therefore, affirmatively appears that the plaintiff was guilty of contributory negligence.
Upon the question of defendant's negligence, the case is as consistent with the exercise of due care as with negligence, and this is not enough. The judgment should be reversed.
MacLEAN, J., concurring; LEVENTRITT, J., taking no part.
Judgment reversed, new trial ordered, with costs to appellant to abide event.