
    James Black, Resp’t, v. Third Avenue Railroad Company, App’lt.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      Filed March 6, 1896.)
    
    Negligence—Cable cabs—Presumption.
    Negligence on the part of those in charge of a cable car cannot bo inferred merely from the fact of plaintiffs falling when the car started, when there is nothing unusual and excessive in applying the motive power.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    H. L. Scheuerman, for app'lt; A. G. Vanderpoel, for resp’t.
   PATTERSON, J.

This is an appeal from a judgment entered upon thg verdict of a jury in favor of the plaintiff in an action tried in the superior court of the city of New York, and from an order denying the plaintiff’s motion for a new trial. The action was for damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on one of the defendant’s cars. It was shown in evidence that on the 14th of February, 1894, at about four o’clock in the afternoon, the plaintiff did enter one of the defendant’s cars at Third avenue and Forty-Second street, in the city of New York, and that, when about taking a seat, the car started, and the plaintiff was thrown to the floor. He alleges that the servant in charge of the appliance by which the car was started so negligently and unskillfully used the same-(referring to the.grip, by which a moving cable is caught and attached to the car, and which furnishes the motive power thereof), as to cause a sudden and unnecessary and violent jerk in its starting, in consequence of which the plaintiff was thrown, and suffered the injuries he complains of. A perusal of the testimony as it appears in the printed case shows an utter want of proof to establish the allegations of the “complaint respecting the cause of the-accident There is not one word of testimony to show any unskillfulness or negligence of the company’s servant in charge of the appliance by which the movement of the car was controlled. All that is said is that the car started with a violent jerk. No-testimony whatever was given respecting the manner of starting & cable car, nor what is the character of the motion ordinarily produced by the attachment of the grip to the cable, nor anything respecting the character of the motion first imparted by the running cable to the car at the instant the motion of the car begins. It was sought inferentially to .establish that, by reason of the plaintiff’s falling when the car started, it necessarily must have been because of something unusual and excessive in applying the motive power, and hence negligence. There is nothing whatever to show what was the fault of any of the defendant’s servants in operating the oar. It cannot be said that there was any neglect on the part of the conductor in giving the signal to start. The plaintiff entered with a party consisting of himself, his wife, a Mrs. Whitaker, a Mr. Kirk, and several children. They all appear to have been seated, except the plaintiff, when the car started. In what attitude the plaintiff was standing, how his body was-balanced, or whether he was not in .such a position that any motion of tlie car on starting would have caused him to lose his balance, does not appear. The whole of the plaintiff’s case seems to depend upon a more characterization of the motion, by himself and his wife and another witness, as a violent jerk, which, as before said, is in no wise distinguished from the ordinary initial force of movement of a cable car when started. The case, therefore, is destitute of proof on the subject of negligence on the part of any of the defendant’s servants in starting the car, and especially of any proof of the particular act of negligence ascribed in the complaint as the cause of the accident. There are many other errors appearing upon the record before us, but, in view of the total failure of proof on the subject of negligence of the defendant’s servants; it is unnecessary to consider them.

The judgment and order appealed from must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.  