
    Louis Johnson, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Jffegligenoe—accident due to ths slipping of the hand of a passenger, standing on the running board of an.open street can', from the upright stanchion — motion to amend.
    
    Upon the trial of an action to recover damages for personal injuries sustained by ■ the plaintiff while a passenger upon one of th'e defendant’s open street cars, it appeared that the plaintiff boarded the car upon the assurance of the conductor that there was sitting room therein; that he found none, and was forced to stand up between the seats; that, in consequence of the car taking on more passengers, it became so overcrowded that he was obliged to stand with one foot on the running board and one on the bottom of the car, clinging to one of the ' uprights or stanchions by his left hand in which he also held an umbrella; that it was raining at the time and that the car was running very fast with a jolting motion; that, after clinging to the stanchion for half an hour, his hand slipped and he fell to the ground.
    It did not appear that the slipping of his hand was due to any sudden or unex pected motion of the car, the plaintiff’s statement being that “it was raining and my hand slipped from the uprights.”
    The sole allegation of negligence contained in the complaint was that the defendant’s servants “so carelessly, negligently and unskillfully conducted themselves in the management of said Car as to suddenly and without warning jerk and move said car forward with.a sudden jerk and quick motion, thereby throwing the plaintiff with great violence from said car.”
    The defendant, having moved to dismiss the complaint at the close of the plaintiff’s case on the ground that the plaintiff fell because his hand slipped, the plaintiff’s counsel asked leave to amend the complaint so as to make it conform to the facts proved. Subsequently the plaintiff’s counsel applied for leave to withdraw a juror so as to set up new matter of negligence, the nature of which was not disclosed. The court thereupon ruled that the motion to amend was not before it and, on the motion for leave to withdraw a juror, recalled the plaintiff who testified that, at the time he fell, the car was moving the same as it had been.
    The motion for leave to withdraw a juror was thereupon denied and the motion to dismiss the complaint granted.
    
      Held, that the judgment dismissing the Complaint should be affirmed;
    That the motion to amend the complaint so as to conform to the facts proved was unavailing because the facts proved failed to establish the defendant’s liability, as it was not enough for the plaintiff to show that the defendant .was negligent but he was also obliged to prove that such negligence caused the accident;
    That it was not error to deny the motion to amend even though a new action would be barred by the Statute of Limitations, as the nature of the new matter of negligentfe which the plaintiff desired to incorporate in his complaint was -.not disclosed.
    
      Appeal by the plaintiff, Louis Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of December, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Charles C. Leeds, for the appellant.
    
      Percy /S'. Dxidley, for the respondent.
   Hirschberg, J.:

It may very well be that the plaintiff has a good cause of action against the defendant, but it is undoubted that he has failed to prove it. With his wife and some other companions he started from Maspetli, in Queens county, to return to his home in Brooklyn, on September 16, 1894, by means of one of the defendant’s open trolley cars. He waited for the third car, asking the conductors of the first two which passed whether there was room, and finally boarded the third one, on the assurance of the conductor that there was sitting room. He found none, however, and he was obliged to stand up between the seats. As the car stopped to take on more passengers it became so overcrowded that he was forced to the running board on the left-hand side of the car as it was going, where he stood with one foot on the running board and one on the bottom of the car, holding on to one of the uprights or stanchions by his left hand, in which he also held an umbrella. - It was raining at the time and the car was running very fast, with a rocking, jolting or wagging ” motion. After holding on for half an hour his hand slipped upon the stanchion and he fell to the ground, sustaining thereby the injuries of which he complains.

The conditions under which he met with his accident are such as the greed and rapacity of transportation companies in many parts of the greater city of New York have combined with the submissiveness of the traveling public to make notoriously common ; but he is not entitled to recover damages except upon proof that these conditions were the Cause of his misfortune. There was no guard rail on the side of the car where he was standing, but the proximate cause of the accident was the slipping of his hand from the stanchion. He does not indicate in any way that this was due to the motion of the car. In fact he testified that the car was running at the time he slipped precisely as it had been running the entire time. There was no sudden or unexpected motion at the time either of the car or of the passengers, and, so far as his evidence is concerned, the cause of the slipping of his hand is left wholly to conjecture. It may have been because the stanchion was wet, or because the car was running fast with a jolting motion, or because he was exhausted in his efforts to hold on; or it may have been from all these causes combined, but aside from a statement of the fact that “ it was raining and my hand slipped from the uprights,” his evidence furnishes no hint or clue to the reason.

The negligence alleged in the complaint is “ That while the plaintiff was a passenger on said car * * * the servants of the defendant in charge of the same so carelessly, negligently and unskillfully conducted themselves in the management of said car as to-suddenly and without warning jerk and move said car forward with a sudden jerk and quick motion, thereby throwing the plaintiff with great violence from said car,” etc. The complaint contains no allegation that the car was overcrowded, or that, the plaintiff because of that fact was compelled to ride upon the running board. The sole allegation of negligence is the sudden jerk. /

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground, among others, that the reason why the plaintiff fell, “ as he himself says, was that his hand slipped.” After argument the plaintiff’s counsel asked .leave to amend the complaint to make it. conform to the facts proved. A recess was then taken, and thereafter plaintiff’s counsel applied for leave to withdraw a juror so as to set up new matter of negligence. The court then ruled that the motion to amend was not before it, but on the motion for leave to withdraw a juror recalled and examined the plaintiff, who testified as follows : At the time I fell my hand slipped On the stanchion. The car was moving fast at that time; it was moving this way (illustrating) with a rocking motion. I think it had been continued the whole way from Maspeth. It was the same there as it was all the way down.” Thereupon the motion for leave to withdraw a juror was denied, and the motion to dismiss granted.

No error can be found in this. The nature of the new matter of negligence which the plaintiff desired to incorporate into his complaint was not disclosed. The motion to amend the complaint to make it conform to the facts proved was unavailing, because the facts proved failed to establish the defendant’s liability on any possible allegation of negligence. It was not enough for the plaintiff to prove that the defendant was negligent. The law required him to go further and to prove that the negligence caused the accident.

The cases of Patterson v. Hochster (21 App. Div. 432) and Shanley v. Shanley (22 id. 375), cited by the appellant, are not in point. The latter was an equity action brought to compel specific performance, and the amendment suggested was strictly to conform the complaint to the proofs. In the former case the amendment, the nature of which is not disclosed, but which the court said “ would undoubtedly have been granted at the trial,” etc., was refused upon the supposition of the court, shared in by the plaintiff’s counsel, that the cause of action was not then barred by the Statute of Limb tations, and that a new action could be brought. While it is true in this case that a new action is barred by the Statute of Limitations, yet the amendment proposed at the trial was one which the court could not properly grant, as it disclosed no actionable negligence in any proposed substitution of new matter, while amending the complaint to conform to the proof would only have served to make the complaint demurrable.

The judgment and order should be affirmed.

Goodrich, P. J., concurred in result

Judgment and order unanimously affirmed, with costs.  