
    Mary Lomas, Appellant, v. New York City Railway Company, Respondent.
    Second Department,
    March 2, 1906.
    Negligence—passenger thrown from surface car by sudden jolt and rendered unconscious when negligence' question for jury.
    In an action to recover damages.for injuries sustained through the negligent operation of a surface car, whereby the plaintiff was thrown from the car, the negligence of. the defendant is for the jury when the plaintiff has testified thiif, . while standing up and signaling for the car to stop, she-felt a sudden severe shock1 or jolt which threw her, and that thereafter she remembered nothing, . being rendered unconsciqus. On such'testimony a nonsuit is error.,.
    The fact that, the plaintiff could not state what happened after the shock, by reason of being unconscious, does not prevent a recovery,
    Jenks, J., dissented.
    Appeal by the plaintiff, Mary Lomas, from, a judgment of the Supreme Court in favor-of the defendant, entered-in the office of the .clerk of the county of Nassau on the 15tli day of March, 1905, -upon' the dismissal of the complaint by direction of the court after á trial at the Nassau Trial Term.
    
      
      Herbert R. Limburger, for the appellant.
    
      Anthony J. Ernest [Bayard H. Ames and James L. Quackenbush with him on the brief], for the respondent.
   Hooker, J :

In this action of negligence, by passenger against comráon carrier based upon the negligent operation of defendant’s street car, the plaintiff was nonsuited. She entered the car at One Hundred and Sixteenth street and Eighth avenue; with her was her little grandson, three years, old; the open trolley car was comfortably filled, but not crowded, and the plaintiff was riding at the right hand or •outer end of the seat with the child between her and the extreme outer edge thereof. Intending to alight at Sixty-fifth, street, she raised the child on his feet on the seat as the car passed Sixty-sixth street, stood up, and, putting her arm around him, looked toward the conductor and signaled him to stop at Sixty-fifth street. She saw him then put up his arm, and she described what then happened thus: The right hand clutched the boy and theright hand on the side. The next thing that I can remember is that I could feel a big shock, a big jerk. A big shock, it shook me. Q. What shook you, madam? A. Something that the car jerked as though it-was lifting up, as though the car was lifted up and shook me, knocked me over and that is all I know about that. * - * I first stood up to signal him when I had just crossed 66th street. I remained standing until I fell off the car. * * * Q. You don’t know whether you fell off that car or not ? A, No, I don’t know. I only felt a big jerk and I went at once. * * Q. And was there any motion that you. felt of the car? A. Just after I saw the conductor put up his hand that was the motion I felt — a big jerk and it knocked me somewhere, I don’t know — I remember the speed of the car. * * * Q. Do you remember getting off that car at all? A. No, I don’t remember anything after being in it. Q. You don’t remember after being in the car ? A. In the car. Q. By that you mean, nothing after signaling the conductor ? A.. Oh, no, sir, after I got thrown — when the big lurch I got, I don’t remember anything else.”

The respondent relies especially upon the proposition that there is no evidence to show that the defendant was negligent, Or that such assumed negligence was the proximate cause of plaintiff’s injuries. We think it a reasonable inference, however, from the evidence of the plaintiff, to which attention has been called, that she fell from the violent jerking of the car, and it can matter little whether in her fall she struck her head against a part of the car or the pavement itself. The theory of the cases is that the. negligence consists in so operating trains as to deprive passengers of their equilibrium and to throw them over while standing where they have a right to stand in-the vehicle-of the common carrier. The injury to plaintiff’s head is clearly established to have been traumatic ; soon after the accident the plaintiff’s, son found her on the sidewalk about opposite, to the place where the car experienced . the sudden and severe jolt, and he found near the south-bound track, between it and the curbstone, traces of blood. It is evident, that the-plaintiff lost consciousness at once upon her falling, and lienee it is of course impossible for her to tell where she'fell and whether she received her injuries by coming in contact with some part of the car or some object exterior to it. But the defendant can have nothing by this failure of the plaintiff to give the detail after she, was rendered unconscious, for what she tells of the accident up to the time she was rendered so is sufficient, if true, to establish the defendant’s negligence, and this should have taken the case to the jury.

In Grotsch v. Steinway R. Co. (19 App. Div. 130) the court, said: “As to the.starting’of the car the proof of negligence was, beyond doubt, such as to require the submission of the question to the jury. The testimony is abundant upon that subject. Several witnesses testify that the car was started with great violence, and the inference is fair that that violence could not have been the result of anything else than the improper application of the power to move the can It'was so great that several of the passengers inside the car were thrown on the floor. *' * * That this must have been the result of negligence is the reasonable inference.” .

In Miles v. King (18 App. Div. 41), where, as the train was coming into the station and as plaintiff stood in the aisle .she experienced a violent jerk of the train, producing .a fracture of her leg, the court said: “We are. sensible that, in the operation of railroad trains, there must be more or less jarring, jerking and sudden movements of the train, which are a necessary concomitant to their operation at. all, and for which no right of action lies even though injury results. • What movements of trains are necessary and what are unnecessary may be, a.t times, difficult of determination and must rest for solution upon the facts of the particular case. In the present instance we are not able to see that the management of this train, under the circumstances, was so far necessary, or such as might reasonably be expected, as to make its. solution a question of "law for the court. On the contrary, we think that it became a question of fact for the jury and should have been left to them. The objection that no proof exists to show that the injury was inflicted by the servants of the defendants, or upon a road controlled and operated by them, is sufficiently answered by the authority of the Wylde Case (supra ).”

In Sheeron v. Coney Island & Brooklyn R. R. Co. (78 App. Div. 476) the court said: There was testimony of passengers and bystanders that the car crossed Schermerhorn street without stopping ; that after crossing it slowed up a little, and then suddenly started quickly with a jerk sufficient to throw standing passengers off their footing and against the seats. Sheeron’s fall from the car was coincident with the sudden jerk and the accelerated speed of the car. This evidence, within the principié announced in the cases above cited, required the submission of the case to the jury, and the dismissal of the complaint was error.’ Gilmore v. Brooklyn Heights R. R. Co. (6 App. Div. 117); Dochtermann v. Brooklyn Heights R. R. Co (32 id. 13; affd., 164 N. Y. 586); Hassen v. Nassau Electric R. R. Co. (34 App. Div. 72), Brainard v. Nassau Electric R. R. Co. (44 id. 613); Harty v. N. Y. & Queens Co. R. Co. (95 id. 119) hold the same doctrine.

The lespondent asserts that Griffen v Manice (166 N. Y. 188) is authority to the contrary, and quotes this "language of Judge Cullen : “ If a passenger in a car is injured by striking the seat in front of him, that of itself authorizes no inference of negligence. If it be shown, however, that he was precipitated against the seat, by reason of the train coming in collision with another train, or in consequence of the car being derailed, the presumption of negl-i-. . gence arises. The ' res,’ therefore,' includes the attending circum- • stances,, and, so defined,, the application of the rule presents principally the question of the sufficiency'of circumstantial evidence to establish, or to justify the jury in" inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence, f * * But the question in every case is the same whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.”

The cases which have been referred to are not. at war with this principle, but are in strict harmony, with it. If it; had appeared from-the record merely that this plaintiff had received a violent in jury to the head as she sat oil- her seat, or even stood with her arm ground her grandson, no negligence on the part of the defendant could, of course, have been imputable, but the case, goes further than, that, and shows the eause of plaintiff’s, being knocked over toliave been an unusually severe jolt, jar or jerk of the" car, which impressed the plaintiff as though the ear were being lifted up, and which came with such suddenness that she was thrown down. The law imposes- -upon common earners, the duty to exercise the highest degree of care and caution in the operation of their trams tha,t human skill and prudence can-suggest, and "it is not the ordinary thing when that degree of care is being observed to jolt or jerk, a car with that excessive degree of violence which is inferable from the- evidence, of the plaintiff. The ¿vidence in the record,1 was sufficient to impose the burden upon the defendant of explaining the ■manner tif the" accident, to show if it could freedom from negligence on its part.' • . ...

Gaynob, High and Milleb, JJ., concurred; Jebes, J , dissented.

. Judgment reversed- and new trial granted, costs to- abide the event. . 
      
      
         Wylde v. Northern R. R. Co. of N. J. (53 N. Y. 156).— [Rep.
     