Opinion
February 5, 1940.
In an action to recover for personal injuries sustained by the substituted plaintiffs' intestate, who was a passenger seated in defendant's trolley car, and whose arm came in contact with a truck which the trolley car was passing, judgment entered on the verdict of a jury in favor of plaintiffs' intestate reversed on the law and the facts and a new trial granted, with costs to abide the event. (1) Under the facts in this case a motorman's duty is not to be measured by a very high degree of care but by the care of a reasonably prudent man under the circumstances. (2) Although counsel for plaintiffs' intestate disclaimed that defendant's liability could be predicated upon the absence of bars on the side of the window, he was permitted to argue the contrary to the jury. This was error. (3) In the interest of justice there should be a new trial. Lazansky, P.J., Johnston, Adel and Close, JJ., concur; Carswell, J., concurs on grounds 2 and 3 for reversal and a new trial.