
    Elias Jonas, an Infant, by Libbie Tuck, his Guardian ad Litem, Appellant, v. The Long Island Railroad Co., Respondent.
    (Supreme Court, Appellate Term,
    September, 1897.)
    1. negligence — Train stopping with a “ jerk,” not unusual.
    Mere proof upon the part of .a passenger seeking’ to recover of a ■railroad company damages for personal injuries resulting from its alleged negligence, that, after the conductor had called out the name of his station-" and while the train was still in motion, he went out upon the platform and was thrown from it because the train stopped with a -sudden “ jerk,” not accompanied by any proof that the “ jerk ” was unusually violent or that it might have been avoided by the exercise of reasonable care, does not entitle the passenger to recover. 3. Same—'Bes ipsa loquitur inapplicable.
    Upon such a state of the proofs, the mere happening of the accident ' is not sufficient to make applicable the rule of res ipsa loquitur.
    Jonas v. Long Island R. R. Co., 20 Misc. Rep. 176, affirmed.
    Ahpeal from an affirmance by the General Term of the City Court of Rew York, of a judgment for the defendant, entered upon the dismissal of the complaint át a Trial Term of the same court.
    Action by a passenger upon the defendant’s railroad for personal injuries alleged to have been sustained by a fall off the front platform of the car, caused by a sudden jerk in bringing the train to a standstill.
    Max Altmayer, for appellant.
    Wm. J. Kelly, for respondent.
   Bischoff, J.

The plaintiff, a passenger on board of one of the defendant’s trains, left the interior of the car and stood upon the' front platform while the tram was in motion and approaching the station at Broad.Channel, Long Island, at which place he intended to alight. The stoppage of the train was accompanied-with a “ jerk ” of the car -which caused the plaintiff to fall off. the platform, and in this manner he sustained the injuries complained of in this action. The complaint was. dismissed, and the judgment of dismissal affirmed in the court below*.

The particular ground assigned by the trial court for. its ruling was that the plaintiff, in placing himself where he did, was guilty of contributory negligence. Waiving the question, however, as to whether or not the plaintiff’s conduct was negligence, per se, it remains that a recovery would have' been unauthorized for the want.of any evidence of negligence upon the part of the defendant, or its employees.

The only witness to the occurrence of the accident, examined upon the trial, was' the plaintiff. He testified that after the conductor had called out “ Broad Channel,’.’ he went out upon the front platform; that the train was then in motion; that for the latter reason he did not attempt to alight, knowing such attempt would be fraught with the risk of life; that as the train neared the station, its speed was slackened, and that in bringing it to a standstill the cars encountered the jerk ’-’ which caused him to fall. Rot a word appeal's in the case to serve as a means of determining that tke_ “ jerk ’’ was avoidable with the exercise of reasonable care upon the part of the defendant’s employees, or that the ■“ jerk ” was of more than ordinary violence, from which latter fact an inference of the omission of reasonable care would have been allowable. Wherein then was the defendant, wherein were its employees negligent? What particular duty of reasonable care did they leave unperformed? The defendant was not an insurer of the plaintiff’s safety, and the mere happening of the accident raised no presumption that it was caused by the defendant’s or its employees’ neglect. De Soucey v. Man. Ry. Co., 39 N. Y. St. Repr. 79; Conlin v. Rogers, id. 51, and cases there cited. We cannot say that the trial court was bound to take judicial notice that a train of cars can be brought from motion to a state of inertia without impact or “ jerk ” of some degree; and, in the absence of evidence showing the latter fact, how can the defendant, or its employees, be said to have failed in the observance of reasonable care because of an occurrence which it does not appear they could have avoided? Obviously, that the plaintiff’s hurt was caused by the defendant’s or its employees’ neglect was left wholly to speculation or conjecture. The rule res ipsa loquitur does not apply. Thomas on Negligence, 574, etc.

. The mere statement of the facts in the record is sufficient to- distinguish this case from the cases wherein it was held to- be negligence upon the part of a railroad company, or its employees; to suddenly start the train while a passenger was in the act of boarding or alighting, and' before the latter had reached a place of comparative and reasonable safety. Thomas on Negligence, 251, and cases collated.

The judgment is affirmed, with costs.

McAdam, J., concurs.

Judgment affirmed, with costs.  