
    Louis Hirsch, Respondent, v. The Union Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Carriers — Carriage of passengers — Actions for personal injuries — Starting with a jerk not enough to show negligence — Admissibility of evidence of defendant — Proof that defendant had no notice of accident.
    The starting of a street car with a jerk is not sufficient to show negligence or carelessness in its management.
    In an action for injuries, alleged to have been sustained by plaintiff by being thrown down in consequence of the car’s starting with a jerk after he had boarded it, a refusal to permit the accident clerk of the defendant to testify as to whether it had received notice of the accident was error. Defendant should have been permitted to explain why it presented no defense, as its failure to call witnesses was calculated to prejudice the jury against it.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered in favor of the plaintiff, after a trial before the court and a jury.
    Henry A. Robinson (Bayard H. Ames and E. Merriam Bagg, of counsel), for appellant.
    Leonard Bronner and Jacob M. Schoenfeld, for respondent.
   Scott, J.

The allegation of the complaint is, “ that plaintiff had got aboard said car and on the platform thereof and was about to enter the car, for the purpose of taking a seat therein, and that, in the act of doing so, the car was carelessly, recklessly, and negligently, and without notice or warning to the plaintiff, set in motion, with a violent jerk, causing the plaintiff to he violently thrown backward against the rear dashboard.” Hence it will be seen that it is not complained that plaintiff was not given time to board the car, but, on the contrary, it is distinctly alleged that he had boarded the car and reached the platform, ordinarily a place of safety, and that the injury resulted from the manner in which the car was started. The evidence also shows that the plaintiff had gotten wholly aboard the car before it was started, although he now says that one foot was on the platform and one on the step. He also changes, somewhat, the story as to how he was hurt; alleging that he was thrown against the door, instead of the dashboard; although, if he was thrown down in consequence of starting with a jerk, the natural and probable result would be to throw plaintiff backward, instead of forward. At all events the negligence charged was the jerk with which the car was started, and here, as we think, the plaintiff failed to make out a case. The only evidence on the subject is that of the plaintiff and his friend and witness Stern. Plaintiff says that the car was started with “ a very strong jerk,” and Stem says, “ the car jerked.” This alone was not sufficient to show negligence or carelessness in the management of the car. Black v. Third Ave. R. R. Co., 2 App. Div. 387. In all the cases in which a sudden jerk in the starting of a ear has been held to be evidence of negligence, the proof as to the nature and effect of the jerk has been much stronger than in the present. We think, also, that there was error in the refusal to permit the defendant’s accident clerk to testify as to whether or not the company had received notice of the accident. The failure to call any witnesses was calculated to prejudice the jury against defendant, and it should have been permitted to explain why it presented no defense. Schadletsky v. New York City R. Co., 88 N. Y. Supp. 1014.

Gildersleeve and MacLean, JJ., concur.

Judgment reversed and new trial granted, with, costs to appellant to abide event.  