Black v. Third Avenue Railroad — 2 A.D. 387

Majority

p. 387

James Black, Respondent, v. Third Avenue Railroad Company, Appellant.

Headnote

Negligence—injury from a jerlc, in sta/rting a cable ca/r, throwing the plaintiff down—failure of proof.

In an action brought to recover damages resulting from injuries caused by the alleged negligente of the defendant, it appeared that the plaintiff, while riding upon a cable car, was thrown down and injured by a sudden jerk which came when the car was started, and, beyond the fact that this jerk occurred, no proof was given of negligence in the management of the car. No testimony was given as to the manner in which the cable' car was started, nor of the motion ordinarily produced by the.grip, nor of its motion after the gird had attached itself to the cable.

'Held, that there was no proof of the negligence of the defendant which entitled the plaintiff to recover,

. Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the.Superior Court of the.city of New. York in

p. 388

favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of Octpber, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1895, denying ,the defendant’s motion for a new trial made upon the minutes.

Henry L. Scheuerma/n> and WilUam JY. Oohen, for the appellant.

A. G. Ycmderpoel, for the -respondent.

This is an appeal from a judgment entered upon the verdict of a . jury in favor of the plaintiff in an action tried in the Superior Court of the city of New York, and from an order denying the plaintiff’s motion for a new trial. The action was for damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on one of the defendant’s cars.' It was shown in evidence that on the 14th of February, 1894, at about four o’clock in the afternoon, the plaintiff did enter one of the defendant’s cars at Third avenue and Forty-second street, in the city of New York, and that when about taking a seat, the car started and the plaintiff was thrown to the floor. He alleges that the servant in charge of the appliance by which the car was started so negligently and unskillfully used the same (referring to the grip, by which a moving cable is caught and attached to the car and which furnishes the motive power thereof) as to cause a sudden and unnecessary and violent jerk in its. starting, in consequence, of which the plaintiff was thrown and suffered the injuries he complains of.

A perusal of the testimony as it appears in the printed case, shows an utter want of proof to establish the allegations of the complaint respecting the -cause of the accident. , There is not one word of testimony to show any unskillfulness or negligence of the company’s servant in charge of the appliance by which the movement of the car was controlled. All that is said, is, that the car started with a violent jerk. No testimony whatever was given, respecting the manner of starting a cable car, nor what is the- character of the motion ordinarily produced by the attachment of the grip to the cable; nor anything respecting the character of the motion first imparted by the running cable to the car at the instant the motion

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of the car begins. It was sought inferentially to establish that by reason of the plaintiff’s falling when the- car started that it necessarily must have been because of something unusual and excessive in applying the motive power and hence negligence. There is nothing whatever to show what was the fault, if any, of the defendant’s servants in operating the car. It cannot be -said that there was any neglect- on the part of the conductor in giving the signal to start. The plaintiff entered with a party consisting of himself, his wife, a Mrs. Whitaker,-a Mr. Kirk and several children. They all appear to have been seated, except the plaintiff, when the car started. In what attitude the plaintiff was standing, how his body was balanced, or whether he was not in such a position that any motion of the car on starting would have caused him to lose his balance, does not-appear. The whole of the plaintiff’s case seems to depend upon a mere characterization of the motion, by himself and his wife and another witness, as a violent jerk, which as before said is in nowise distinguished from the ordinary initial force of movement of a cable car when started. The case, therefore, is destitute of proof on the subject of negligence on the part of any of the defendant’s servants in starting. the car, and especially of any proof of the particular act of negligence ascribed in the complaint as the cause of the accident.

There are many other errors appearing upon the record before us, but in view of the total failure of proof on the subject of negligence of the defendant’s servants, it is unnecessary to consider them.

The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Judgment and order reversed, new trial ordered, with costs to appellant to abide event.