Tompkins v. Interborough Rapid Transit Co.

Majority

p. 20

William M. Tompkins, Appellant, v. Interborough Rapid Transit Company, Respondent.

(Supreme Court, Appellate Term, First Department,

December, 1914.)

Headnote

Carriers — injury to passenger — sudden jerk.

That a street railway car was stopped so suddenly and violently as to throw a passenger about to leave the car off her feet, justifies an inference that due care was not used in the operation of the ear, and in the absence of other evidence was sufficient in an action to recover for personal injuries to take the case to the jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Bronx, .second district, entered upon the dismissal of the complaint at the close of the plaintiff’s case, after a trial before the court and a jury.

George Doan Russell, for appellant.

James L. Quackenbush (Bayard H. Ames, and John Montgomery, of counsel), for respondent.

Plaintiff sues to recover damages for the loss of the services of his wife on account of personal injuries which his wife sustained through the alleged negligence of the defendant. The plaintiff’s wife was a passenger on one of the trains on defendant’s Third Avenue elevated road. The evidence showed that as she was about to leave the car, and had stepped forward toward the door, the car in stopping gave a sudden lurch, which caused her to fall. On cross-examination an attempt was made to make it appear that she had

p. 21

fallen over an obstruction in the aisle, but she adhered to her story that the suddenness with which the car stopped threw her against the obstruction. The fact that the car was stopped so suddenly and violently as to throw the plaintiff off her feet justifies the inference that due care in the operation of the car was not used. The evidence of the jerk which the car gave indicated negligence in its operation, and, in the absence of other evidence, was sufficient to carry the case to the jury. The fact that the car gave a lurch or jerk sufficiently appeared from the testimony, and the use of these terms was not merely characterization.

In view of the proof adduced and the circumstances proved, there was sufficient evidence to call upon the defendant to explain. The dismissal of the complaint requires a reversal of the judgment.

Bijub and 'Cohalan, JJ., concur.

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