
    Patrick Keenan, Respondent, v. Metropolitan Street Railway Company, Appellant.
    First Department,
    March 8, 1907.
    Uegligence — injury to passenger-by sudden starting of car — facts not showing negligence — evidence — damage — loss of wife’s services — trial — improper comment by attorney.
    The plaintiff’s wife in company with her son and daughter hoarded an open car having running; hoards on the side. It appeared that the car was stopped at the signal of another passenger and that the son alighted but that the mother merely arose in her place and did not attempt to leave the car, when the sudden starting thereof threw her to the street.. It also appeared that neither the daughter nor the mother caught the eye of the conductor although- they endeavored to signal him to stop.
    
      Held, that the evidence was insufficient to establish neglig'ence on the part of the conductor in-signaling the car to start, for he was justified in believing that the . plaintiff's wife did not intend to alight.
    When the plaintiff alleged only that he lost his wife’s services as “housekeeper in my dwelling,” he is not entitled to show that she-assisted him in his occu- ■ pation as janitor of adjoining hoiises, nor is he entitled .to show that her illness necessitated the services of his daughters who had previously been earning money which they contributed to the family.
    When-the defendant’s counsel on cross-examination interrogates a witness concerning a discrepancy between her testimony and the complaint filed by herin another actipn, it is improper-for the plaintiff’s attorney to state before the jury that he was responsible for the prior complaint-which had been withdrawn. So too, it is improper for the plaintiff’s attorney to go beyond the. evidence and state that the defendant “has millions of capital” and “.thousands of employees,” etc. •
    
      Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 19th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. McIntyre, for the appellant.
    
      Robert L. Turk, for the respondent.
   Laughlin, J. :

The plaintiff has recovered a verdict for $1,000 damages, alleged to have been sustained in consequence of personal injuries to his wife, alleged to have been caused by defendant through the negligence of its servants in starting a car, which had been stopped at a point where passengers were customarily received and discharged, pursuant to her signal while she “ was in the act of alighting therefrom.” It is not clear from the manner in which the case was submitted to the jury that the verdict was rendered on the theory of negligence in starting the car while the passenger was alighting. The jury should have been instructed that it was incumbent upon plaintiff to show that the conductor knew, or, had he exercised reasonable care, would have known that the passenger desired to alight at that point, and if so, she should have been afforded a reasonable opportunity to alight, and if he did not, but signaled the car to start while she was in the act of alighting, then they would be justified in finding the company guilty of negligence. The jury may well have thought that even though the conductor did not know and should not have known that she wished to alight, yet that if the car was started with a jerk the company would be liable. If her conduct was such as to justify the conductor in inferring that she did not intend to alight there, he was not required to delay all other passengers by holding his car until she saw fit to sit down. She should either have remained seated or held on securely, or have made some move toward the running board, or given the conductor some notice that she was getting off as fast as she reasonably could. The evidence showed that the signal to stop was not given by plaintiff’s wife, but by her son; and it does not show that the conductor' either knew or should have known that they were traveling together, or desired or intended. to alight at the same point. ■ It was, according to plaintiff’s evidence, an open car with .a running board át the side. Plaintiff’s wife, her son and daughter boarded a cross-town car at Eighty-sixth, street and Avenue A, and changed to a north-bound car at Lexington avenue, and again changed to ■ a Lenox avenue car at One Hundred and Fifth or One Hundred and Sixth street. They contemplated alighting at Lenox avenue and One Hundred and Twenty-first' street, west. It does not appear whether the fares were paid separately or by one for all, or whether each held a transfer'or one held three ; nor does it appear whether many passengers boarded the Lenox avenue car with them, so that the conductor would have known, that they were traveling together. The accident happened about eleven o’clock at night. Plaintiff’s wife, according to her testimony, was seated on the fourth seat from the front of the car and her son sat to her right and her daughter to her left on the same seat. The son alighted in safety before the car started, but she, according to her own testimony, either remained seated until after it started or made no move preparatory to alighting until after after it stopped, and then merely arose in her place and remained standing firmly on both feet in the body of the car, with her left hand grasping the back of the seat in front, looking forward, without attempting to signal the conductor who was at the rear end of the car, when it started with .a jerk and threw her down and off the car. She said on her direct examination: “ My son got off first and-after my son got off the car started and I raised up ; the car started and threw me, and gave that jerk and threw me. I was standing facing the head or front of the car, just as I got up. I stood up and just put my hand like that on the front seat (indicating) as the car' threw me. That was my left hand, on the seat in front of' me. At the time the car gave this sudden start I was standing on the body of the car, on the platform. I was not on this running board. I never made no motion to get down. With my hand on the seat in ' front of me this car threw me.” On cross-examination her testimony is practically the same ; but she said that she did not remember whether her son remained seated until the car stopped; that after alighting he remained standing by the car to assist her off and that the car moved forward again at least five feet, and she could not say how much further before she was thrown off. The son was in Kansas at the time of the trial and his evidence was not taken. The daughter testified that she and her mother remained seated until after the car stopped, and that her brother arose.but did not step down onto the running board until after the car stopped. She said that both she and her brother made an unsuccessful attempt to signal the conductor but could not get his eye, and later they endeavored to attract his attention again and he gave the signal to stop ; but she does not. say that he ivas looking at her, and in view of the fact that she made no move to arise until after the car stopped, it cannot be said that he saw any signal except that given by her brother, as testified to by her mother. Assuming that there was sufficient evidence that the car was negligently started while she was in the act of alighting, to take the case to the jury, which is doubtful, the weight of the evidence indicates that there was no negligence on the part of the conductor in signaling the car to start, for he was justified in believing that plaintiff’s wife did not intend to alight at that point. She had not reached the running board or moved toward it. The conductor was toward the rear and she had given no indication to him that she contemplated alighting there, and in the circumstances I think her attitude was not sufficient notice. If he observed her, he may fairly have inferred that she was preparing to alight at the next street.

The plaintiff in his complaint specified that the services of his wife, which he lost owing to her injuries, and which he was obliged to employ others to perform, consisted of the “ duties of housekeeper in their dwelling ” which she performed for him and their family. Plaintiff and his wife and family resided at Ho. 168 West One'Hundred and Twenty-first street, borough of Manhattan, Hew York. He was permitted to show, over objection duly interposed, that it was not within the issues, and exception, that, his occupation was that of a janitor; that he was janitor of the house in which they resided and of Ho. 170, the next house, as well; that she assisted him in his occupation as janitor of those houses and that lie was obliged to require alternately two of his daughters, one of whom was over age, who were working ont, earning and contributing to their father, one five dollars per week and the other three dollars and a half per week and board, to remain home nearly two years and perform the services which she had theretofore performed in connection with the janitorsliip of those houses, which consisted of cleaning and lighting the halls and the household duties as well. Plaintiff was thus allowed to prove damages not pleaded and also to give incompetent evidence as to damages properly pleaded. The loss of his daughters’ earnings was neither recoverable nor proper proof of the reasonable value of the services of his wife.

On cross-examination of plaintiff’s wife it appeared that she also had sued the defendant. Counsel for defendant, manifestly with' a view to interrogating her concerning a discrepancy between, her testimony and her original complaint in that action, which was subsequently amended, asked for the original complaint and plaintiff’s attorney stated that her original action had been discontinued owing to an error in the complaint for which he was responsible, and after counsel for defendant pointedly objected, he persisted in repeating the statement. This was highly improper and calculated to prejudice the defendant in its right to cross-examine the witness without her being assisted by her counsel in explaining a verified declaration inconsistent with her testimony.

In summing up the attorney for plaintiff'stated without any evidence in the record to justify it that the defendant “has millions of capital” and “thousands of employees” and had failed to produce a passenger who saw the accident, and dwelt unduly on the fact that the conductor did not give his right name on entering the employ of the company, and referred to him as “ the man who committed a crime on entering that corporation.”

, There are other exceptions which might require serious consideration, but since for the conduct of plaintiff’s attorney which was prejudicial to defendant, for errors in the reception of evidence on the question of damages already pointed out, for allowing a recovery on a theory different from that pleaded, and because the verdict, if rendered on the proper theory, is against the weight of the evidence, a new trial must he ordered, it is not deemed necessary to pass upon them, as they may be avoided on the next trial.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Houghton and Lambert, JJ., concurred.

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