Opinion
April, 1906.
Henry A. Robinson (Bayard H. Ames, of counsel), for appellant.
Adolph Ruger (W. Harry Sefton, of counsel), for respondent.
This is a husband's action for the recovery of damages suffered by him in consequence of an accident to his wife. The claim is that after the wife, who was carrying a child in her arms, had safely boarded the car — a closed one — and was entering the car from the rear platform, the car was started with such a violent jerk that she was thrown forward on to her knees, and that then the car was stopped with a jerk so violent that she was thrown backward on to her back. The only evidence as to the accident was given by the injured wife and her sister, the defendant proving that it had received no report. The negligence claimed is the violent starting and stopping of the car. The only evidence as to the character of the start and stopping was that of the plaintiff's wife, who repeatedly used the words "violent jerk," and that of her sister, who said that the car started with a "sudden jerk." This evidence conveys no definite impression to the mind as to the character of the movement of the car, does not show that that movement differed in any way from that usually attending the starting and stopping of an electric car, and is insufficient as evidence of defendant's negligence. Black v. Third Ave. R. Co., 2 A.D. 387. The cases upon which respondent relies such as Dochterman v. Brooklyn Heights R.R. Co., 32 A.D. 13, and Grotsch v. Steinway R. Co., 19 id. 130, differ from the present in that the evidence as to the nature of the movement of the car was satisfactorily shown to be unusual and of great violence. It is difficult also to see how the sudden starting and stopping of the car could have caused the plaintiff's wife to fall as she and her sister say that she did. She was at the rear doorway, facing forward in the direction the car was about to proceed. The sudden starting of the car, if it was suddenly started, would tend to throw her backward, not forward on to her knees; and, after she had fallen to her knees, the sudden stopping of the car would tend to throw her still further forward, not to turn her completely over backward with her head out of the rear door and her feet pointing toward the front of the car. No plausible explanation is suggested why the injured person fell twice in apparent violation of well-known and established physical laws. The damages are probably excessive. They consist in large part of a considerable bill for the services of a physician, covering a period of some three years. Obviously, some of the ailments for which these services were rendered are not traceable to the accident, and the court very properly so instructed the jury; but no attempt was made to divide up the physician's charges or to show how much was properly chargeable to consequences flowing from the accident.
We think that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
TRUAX and BISCHOFF, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.