Summary
In Black v. Third Avenue R.R. Co. (2 App. Div. 387) there was also an omission to prove any unusual movement of the car.
Summary of this case from Harty v. New York Queens Co. R. Co.Opinion
March Term, 1896.
Henry L. Scheuerman and William N. Cohen, for the appellant.
A.G. Vanderpoel, 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 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.