
    McCabe v. Manhattan Ry. Co.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Railroad Companies—Negligence.
    Plaintiff’s intestate was a passenger on defendant’s elevated railway, and the train which he was on was compelled to stop some distance before reaching his station. Many of the passengers, at the suggestion of the train-men, got off to walk, and started towards the station, some of them on a platform about 30 inches wide, built for the train-hands, and some on the track, ahead of the train. Without warning, the train started, and in the panic following a general attempt to escape the train many of the passengers, including intestate, were thrown off the platform, and killed or injured. There was evidence that the panic and fall resulted from an attempt by some of the passengers to board the moving train, in which attempt they pushed the others off the platform. A witness for plaintiff testified positively that intestate was ahead of him, and that he saw intestate pushed off by the persons seeking to avoid the moving train, and not by some one further in the rear being thrown against the others while attempting to board the car. Held sufficient evidence to submit to the jury as to the starting of the train being the proximate cause of the injury.
    2. Same—Instructions.
    A charge that if the starting of the train would not have caused the accident, if it had not been for the attempt of the person mentioned to board the train, defendant would not be liable, does not throw the burden on the defendant of showing which was the proximate cause of the injury, when other parts of the charge inform the jury that they shall find for defendant unless the starting of the train was the proximate cause.
    Appeal from circuit court, Hew York county.
    Action by Mary McCabe, administratrix, etc., of Patrick McCabe, deceased, against the Manhattan Railway Company, for damages for personal injuries received through defendant’s alleged negligence. Verdict and judgment for plaintiff for $3,500, and defendant appeals. For statement of facts see Weiler v. Railway Co., ante, 320.
    Argued before Van Brunt, P. J., and Brady and «Daniels, JJ.
    
      Davies <6 Rapallo, (Austen &. Fox, of counsel,) for appellant. Abner C. Thomas, for respondent.
   Van Brunt, P. J.

The main questions involved in this appeal are embraced in the decision of the case of Weiler v. Same Defendant, ante, 320, (decided herewith.)" There are one or two points, however, in the case at bar which distinguish it from the Weller Case, and it will be necessary to consider those points in the disposition of this appeal. It is claimed upon the part of the defendant that from the nature of the evidence offered upon the trial it was impossible for the jury to determine whether the plaintiff was caused to fall by the starting of the train, or whether such fall was caused by the fact of some person trying to board that train pushing off those persons upon the sidewalk as the train moved along. In denying the motion to dismiss, and also in charging the jury, the learned court said that if the accident resulted from this latter cause no recovery could be had, but that there was ■evidence sufficient to submit the case to the jury, upon the question as to whether the moving of the train was not the' proximate cause of the injury. In support of the proposition urged upon the part of the appellant, it is said that the uncontradicted evidence showed that the proximate cause was the deliberate act of some one who, trying to resume his journey by boarding the train, struck those on the sidewalk, knocked some of them off, and caused the panic which resulted in the fall of others. In this statement the learned counsel has entirely ignored the evidence of the witness John Kellier, who was examined on the part of the plaintiff, and who stood directly behind Mc-Cabe at the time he fell. If his evidence is true, it is clear that the accident ■did not happen in the way claimed upon the part of the defendant, but that it was caused by the moving of the train, and by the pressure outwards of ■the persons upon the walk resulting from the moving of the train. This evidence presented a clear question to the jury for their consideration, and if they believed the evidence of ICellier, who testified distinctly that it was the moving of the train that threw McCabe off; that he was behind him; and consequently he could not have been struck by anybody seizing upon the gate of the car, which is not pretended,—they would be fully justified in finding the fact to be that the moving of the train was the proximate cause of the accident, and there was no such deficiency of evidence upon this point as would justify the court in taking the case from the jury upon the ground that there was no evidence upon which they could determine that the proximate cause ■of the fall was the moving of the train.

Our attention is also called to an error which it is claimed the learned judge made in his charge, whereby the defendant was damnified, in that a burden was placed upon it which it was not legally bound to bear; and it is urged that the learned court charged that unless the jury found that the starting of the train, under all the circumstances, would not have caused the injury, and would not have resulted in throwing these people off, had it not been for the attempt of this person to jump on board, and that he, by being thrown .against people on the board walk, caused this injury, and without that affirmative act on his part the plaintiff would not have been hurt, then the defendant was not liable, and that thereby the burden was thrown upon the defendant of showing which of the two causes was the proximate cause of the .accident, shifting from the plaintiff the duty of establishing to the jury that the moving of the train was such proximate cause. This portion of the charge was not excepted to in the first place. The attention of the learned court was not called to the proposition in any way, and it further appears from the other portion of the charge directly in connection with this paragraph that the jury were distinctly instructed that, unless they found that the starting of the engine was the proximate cause, the defendant was entitled to a verdict. The judge said: “Of course the defendant is only liable for the proximate results of his own negligent act, [referring to the engineer,] and, unless you are satisfied that the starting of the engine was what caused the injury, then the plaintiff is not entitled to recover, and the defendant is not liable. ” And then he goes on and makes use of the language to which attention has already been called, showing that, taking the whole charge together, there was no ■intention to have the j ury understand that if they did not find that the moving of the train was the proximate cause of the accident the plaintiff could, under any circumstances, recover; and, if the court made a slip of the tongue, it certainly was not of that character which called itself to the attention of the astute counsel who was trying the case for the defendant, and consequently did not probably make much impression upon the jury. There seem to be no grounds which would justify a reversal of the judgment in this case, and it should accordingly be affirmed, with costs. All concur.  