
    ZANDERS v. YOUNGSTOWN MUNI. RY. CO.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Nov. 4, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 225. Charge of Court.
    where plaintiff claims damages for injuries caused by being thrown by jerk of starting street car, not error to charge that if jerk or lurch was necessary and would obtain in proper operation of car, there was no negligence on part of defendant and plaintiff could not recover.
    Error to Common Pleas.
    Judgment affirmed-
    L. L. George, Youngstown, for Zanders.
    Harrington, DeFord, Huxley & Smith, Youngstown, for Muni. Ry Co.
    STATEMENT OF FACTS.
    This is an action by Ada Zanders to íecover damages for injuries which she claimed were sustained while she was a passenger on one of the defendant company’s cars. The result was a verdict in favor of the defendant.
    Plaintiff claims that she entered one of defendant’s cais at Lakeview Avenue. That while she was stepping into the main body of the car, it gave a jerk or lurch and she was thrown forward; that she got up, dusted off her clothing and went to the rear of the car and sat down. At that time, she did not think she was injured in any way, and when the operator asked for her name, she refused to give it, but after being home a few days, she claims very serious consequences resulted from her fall.
    Just three witnesses testified in the case. One was the doctor, and the other witness besides the plaintiff, was James B. Allen. Mr. Allen testified, that some time about the time claimed by plaintiff he was on a car answering this description and there was just one other man on the car; that a lady fell forward as she was entering the car and that he signed a card and gave it to the conductor of the car. There is no _date on the card, and he was unable to fix the date or the time, and he was unable to identify the lady who fell, but he was able to identify the card and the occasion, - but thought it was not at Lakeview Avenue, but a nearer stop to- the city.
   OPINION OF COURT.

1 The following is taken, verbatim, from the opinion.

POLLOCK, J..

The first error complained of is the giving of the request of the defendant below in charge to the jury. This charge is that if the jerk or lurch which she claims caused her to fáll was necessary and would obtain in proper operation of the car, there was no negligence on the part of the • défendánt, ánd therefore she--could-not recover- -Wé do- not -see' any error in that request;-'•- - ■

jit -is*urged -th’at--the''teStimony; 'of' Mr;- Alien -■•is] incompetent because Allen -is'-nót Jabler tó identify the occasion on which he saw an accident, and for that reason' his testimony should not be introduced. This was a question for the jury to determine, whether the accident Allen saw was' the accident plaintiff complained of. The jury determined that question in favor of the accident the lady sustained; and we feel that it had a right to do' so.

Judgment of the court below affirmed.  