Opinion
November, 1905.
Henry A. Robinson (Bayard H. Ames and E. Merriam Bagg, of counsel), for appellant.
Leonard Bronner and Jacob M. Schoenfeld, for respondent.
The allegation of the complaint is, "that plaintiff had got aboard said car and on the platform thereof and was about to enter the car, for the purpose of taking a seat therein, and that, in the act of doing so, the car was carelessly, recklessly, and negligently, and without notice or warning to the plaintiff, set in motion, with a violent jerk, causing the plaintiff to be violently thrown backward against the rear dashboard." Hence it will be seen that it is not complained that plaintiff was not given time to board the car, but, on the contrary, it is distinctly alleged that he had boarded the car and reached the platform, ordinarily a place of safety, and that the injury resulted from the manner in which the car was started. The evidence also shows that the plaintiff had gotten wholly aboard the car before it was started, although he now says that one foot was on the platform and one on the step. He also changes, somewhat, the story as to how he was hurt; alleging that he was thrown against the door, instead of the dashboard; although, if he was thrown down in consequence of starting with a jerk, the natural and probable result would be to throw plaintiff backward, instead of forward. At all events the negligence charged was the jerk with which the car was started, and here, as we think, the plaintiff failed to make out a case. The only evidence on the subject is that of the plaintiff and his friend and witness Stern. Plaintiff says that the car was started with "a very strong jerk," and Stern says, "the car jerked." This alone was not sufficient to show negligence or carelessness in the management of the car. Black v. Third Ave. R.R. Co., 2 A.D. 387. In all the cases in which a sudden jerk in the starting of a car has been held to be evidence of negligence, the proof as to the nature and effect of the jerk has been much stronger than in the present. We think, also, that there was error in the refusal to permit the defendant's accident clerk to testify as to whether or not the company had received notice of the accident. The failure to call any witnesses was calculated to prejudice the jury against defendant, and it should have been permitted to explain why it presented no defense. Schadletsky v. New York City R. Co., 88 N.Y.S. 1014.
GILDERSLEEVE and MAcLEAN, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.