
    Daniel McGinness, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      Jfegligence — injury-to 'a. conductor of a ’street railroad company from his being thrown from the ear by a sudden jerk—what evidence is insufficient to show that the injury was earned by the act of the gripman, on a ear to' which the conductor's car was attached; in suddenly applying power.
    
    
      ■ In an action brought against the- Third Avenue Railroad ^Company to recover damages for .personal injuries sustained by the plaintiff, who was employed as a conductor by the Dry Dock, East Broadway and Battery Railroad Company, the plaintiff testified that while he was standing on the rear platform of the horse car on which he was employed, and which was'then being drawn’by one of the defendant’s cable cars, the horse car gave a sudden jerk, throwing him. backward into the street. He stated that the sudden jerk was due to the action of the gripman of the cable car in suddenly applying power to that car. He did not, however, testify that he saw the gripman on the cable car, or that there was a gripman thereon. None of the other witnesses testified that any act of the gripman of the cable car, or of any of the defendant’s employees, caused the jerk which threw the plaintiff into the street..
    Upon an appeal from a judgment rendered in favor of the plaintiff it was JELeld, that the evidence did not justify the jury in finding that the jerk which threw the plaintiff from the car was caused by the negligence of the defendant.
    Appeal by the defendant, the Third Avenue Railroad 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 31st day of October, 1904, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 2Yth day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      L. Barton Case, for the respondent.
   Ingraham, J.:

The complaint alleges that the defendant was the owner of and controlling and operating a railroad on Third avenue and Park row in the city of New York at the times mentioned in the complaint; that, on the 23d day of May, 1899, and for several years previous thereto, the plaintiff had been employed as a conductor upon cars owned, operated and controlled by the Dry Dock, East Broadway and Battery Railroad Company; that on the 23d day of May, 1899, the plaintiff was lawfully acting in his capacity as a conductor on car No. 231, owned, operated and controlled by the Dry Dock, East Broadway and Battery Railroad Company, and that said car, with the plaintiff therein acting as aforesaid, was coupled, attached or otherwise connected to a car owned, operated and controlled by the defendant, its servants, agents and employees, and that,said car No. 231 was being drawn or propelled upon the tracks owned, operated and controlled by the said defendant upon said Third avenue and Park row at a moderate rate of speed, when said defendant, its agents or servants, carelessly, negligently and suddenly, and without any warning to the plaintiff, increased the speed of the said car, and through no fault of the plaintiff he . was thrown over the rear dashboard off the said car and was injured. '

The. defendant admits the operation of a railroad, and that the plaintiff was employed as a conductor upon the cars operated. and controlled by the Dry Dock Railroad Company. It alleges that at the time of the accident the plaintiff was^ a servant in the employ of, the defendant, and that any in juries received by the plaintiff, were due to the negligence of another servant of the defendant engaged in the same general business as the plaintiff, and- not to any negligence on the part of the defendant. '

The plaintiff, testified that on the 23d day of May, 1899, he took charge of his car "about five- o’clock in, the morning, went down to the City Hall, and on file return trip, while his car was. going back to Roosevelt street, the Third avenue gripman put power to his, car and, jerked the car the plaintiff was on, so that he was thrown across the dashboard on the broad of his back ; that the car had beeh drawn by horses from Chatham square, was then coupled to a Third avenue car around the Post Office and back again to Chat-ham square; that when he was thrown from the dashboard he fell on his back; that he did not himself attach his car to the Third avenue car; that about á week after the accident he noticed that the veins in his leg began to swell, and that that condition has continued to the present time; that he did not feel that anything was the matter with his leg until he wanted to walk when ..he left the hospital. During the cross-examination the witness was asked by the court to describe the jerk which the car sustained when the gripman put on the power. Counsel for the defendant excepted to that, question, and the witness- answered, “ when the gripman put on.the power on the car I had, hold of the handrail, standing on the rear platform. I tried to hold on to it, and I could not.” This witness was on the rear platform of the horse car. ’ The horse car was attached to one of the cars of the defendant, which was operated by cable. It is quite apparent that he could not tell what the grip-man did on the front platform of the defendant’s cat. He does not testify that he saw the- gripman in the car, or that there was a grip-man there at all. The only evidence in the ease is that the plaintiff was'standing on the'back platform of his car; that his car was attached to a Third avenue car operated by cable; that there was a sudden jerk of the car which he was on, and he was thrown into the street. The plaintiff was not a passenger upon the defendant’s car. He was not an employee of defendant, but was in the employ óf another company, which was at the time of the accident operating its own roád. Although alleged in' the answer, there was no proof that the defendant was operating both roads. If that proof had existed it would have been clear that any negligence in operating the car was the negligence of a fellow-servant, for which the defendant is not responsible; but assuming that the plaintiff was an employee of an independent company, and that the defendant furnished the motive power' for the car upon which the plaintiff was employed, to justify a recovery the burden was on the plaintiff to prove that the sudden jerk was caused by some negligence of the defendant. There being no relation of passenger and carrier, the maxim res ipsa loquitur cannot help the'plaintiff. No one testified that'the motorman of the defendant’s'car did put on the power, or that any act of his, or ány of the defendant’s employees, caused the jerk which threw the plaintiff over the dashboard of the car upon which he was standing.

I do not think, therefore, that the jury were justified in finding that the plaintiff was thrown from the car by the negligence of the defendant.

There is an exception to evidence which, I think, requires _a reversal of the "judgment. There was no allegation in the complaint that the plaintiff’s injuries were permanent, the sole allegation as to damage being that owing to thé negligence and carelessness of the defendant, its agents or servants, the plaintiff was damaged and put to various expenses, and is still suffering from the effects of said injuries to his damage in the sum of $25,000. A physician was called and testified that he examined the plaintiff’s leg two days beforé the trial; that he found a large mass of varicose veins enlarged on the plaintiff’s leg. Counsel for plaintiff then started to frame a hypothetical question, to which, as the question was being asked, the court made suggestions, but whether the suggestions of the court were accepted by counsel for the plaintiff does not appear; and, finally, the witness was' asked by the court: “ Can you say whether the condition which you told us that you found him. ’in when, you examined him was caused by the fall or being thrown from the car % ” To that counsel for the defendant excepted lipón the ground that the question was incompetent, irrelevant and immaterial. When asked by the court why incompetent, the counsel said: “I cannot see here where they have connected.the condition discovered by the plaintiff. * * * There is not sufficient corinection of that condition with this accident.” The objection was overruled and the defendant excepted, and the witness then answered, “That could come from this.” The court then asked the witness) “ In your opinion did it ? ” and. the witness answered, “ I eoúld not say what he had before.” The court then said to the witness- that he could assume, that plaintiff was a perfectly well man before he went off the cat) and the answer was that.“If that was not there before, it would Come from that.” Question by the court: “ Did it, in your opinion Í” ' The witness answered, “ Yes, sir, if it was not there before.” Thé witness was then asked: “Assuming ■ all of these facts included in the last question, can you say with a ■ reasonable degree of certainty whether the injuries thus described will be permanent ? ” This question was not answered, but in answer to a question by the court, the 'witness testified" that -in his opinion tliése varicose veins could be caused by other things than the accident; that from the appearance, the varicose veins had been there a good while—four, five, six or seven years; might have been ten years;. that people that “long stand” on their feet are more apt to have varicose veins; that nothing in falling on Ms back could induce him to have varicose veins in the knee; that these looked like old veins to the witness.

T think the objection to this hypothetical question should have been sustained..' The question is só indefinite and confused that it is impossible to tell upon just what facts the witness based his opinion, nor do I think that the evidence was sufficient to show that the varicose veins resulted from the accident. All the • plaintiff’s witnesses testified that he fell on his back, and the only expert examined testified that a fall on the back would not produce this condition. Thé accident happened on the 23d of May, 1899, and the action was -brought>on for trial in October, 1904, over five y'ears from the time of the accident. The examination from which the medical expert testified was made two days before the trial. We have the evidence of the plaintiff that these varicose veins appeared . some weeks after the accident, with the evidence of the physician that this condition of the varicose veins could not be caused by the fall upon the liack, and the only evidence in relation to the fall is that of the plaintiff that he fell upon his back and that they could result from other causes.

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

Van Bkunt, P. J., O’Bbien, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appelant to abide event.  