
    Caroline Stern, Appellant, v. Westchester Electric Railroad Company, Respondent.
    
      Negligence—injury to a passenger who either was thrown from, a trolley car in the disturbance resulting from, the breaking of a span wire, as alleged in the complaint, or involuntarily jumped therefrom in the excitement consequent thereon — proper charge of the court in thepi'emises— the final charge controls—objection that a complaint is not broad enough to justify a recovery on the latter theory must be taken in the first instance at the trial.
    
    In an action brought to recover damages for personal injuries it appeared that while the plaintiff was a passenger on one of defendant’s open trolley cars the span wire broke from some unexplained cause while the car was going very fast; that the trolley pole and wire fell upon the car, and that in the flashing of electric light and the commotion that ensued the plaintiff was either thrown or jumped from the car.
    In the complaint she alleged that she was thrown from the car, but the evidence given would support the theory either that she was thrown from the car or that she involuntarily jumped therefrom in the excitement caused by her surroundings.
    The court charged the jury as follows: “ If this car became so violent from any cause that by the explosion of wires or by the momentum at which it was going and the added commotion of the passengers in the car, if by one or any of these things she was thrown out inwluntm'ily, why then she had a good cause of action. * * But if you find, on the contrary, that the car got in no commotion, and that there was no violence, that on the contrary the car was immediately stopped, and that then without any reason, not involuntarily, but voluntarily, she got down and got off, why then she has got no cause of action and can recover nothing.”
    At the close of the charge the following requests, rulings and exceptions were made: ” Defendant’s Counsel: I ask your Honor to charge that even if the car became disordered and violent through the negligence of the defendant, the plaintiff cannot recover if she voluntarily jumped from the car. The Court: I charged that; substantially that. Plaintiff's Counsel: To which I except. The Court: If even though voluntarily it was induced by the happening of this disorder which has been described here, I think then that it would be attributable to the company. Defendant’s Counsel: I except. I ask your Honor to charge that whether the pole or wire fell or not is of no importanoe unless that caused the plaintiff to be thrown from the car. The Court: I have told the jury that very clearly. It does not matter anything about the fall of it or your negligence unless it is the thing that caused the hurt. Defendant’s Counsel: I ask your Honor to charge that even if the plaintiff was justified in jumping from the car by reason of fright that she cannot recover in this action. The Court: I decline. * * * Defendant’s Counsel: I ask your Honor to charge the jury that the plaintiff to recover at all in this action must recover upon the theory that she was thrown from the car. The Court: Yes, within the law as I have laid it down. Plaintiff’s Counsel: To which I except.”
    
      Held, that the instructions given by the court upon the subject of the plaintiff’s right to recover if she jumped from the car were so conflicting as to require a reversal of the judgment entered upon a verdict in favor of the defendant;
    That the final charge should be deemed the one controlling the deliberations of the jury;
    That such final charge was erroneous, as it instructed the jury that the plaintiff could recover only if she was thrown from the car, and necessarily implied that she was not entitled to recover if she jumped from the car involuntarily, through the effect of fear;
    That, although the court had previously charged that the plaintiff could recover if she had jumped from the car involuntarily through the influence of fear, it was overcome by the specific statement that she could only recover if she had been thrown from the car, and that the phrase “ within the law as I have laid it down,” used by the court when charging the final request, did not serve to harmonize the inconsistency between the various portions of the charge;
    That, assuming that the complaint was not broad enough to allow a recovery upon the theory that the plaintiff involuntarily jumped from the car under the influence of fear, negligently created by the defendant, it was the duty of the defendant to raise that question in the first instance either at the Trial or Special Term.
    Appeal by the plaintiff, Caroline Stern, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 23d day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Henry L. Franklin, for the appellant.
    
      Bayard H. Ames [Henry A. Robinson with him on the brief], for the respondent.
   Hirschberg, P. J.:

The plaintiff was injured while a passenger on one of the defendant’s open trolley cars. The span wire broke from some unexplained cause while the car was going very fast, the trolley pole and wire fell upon the car, and in the flashing of electric light and the unusual commotion which ensued the plaintiff was either thrown or jumped in fright from the car. In the complaint she alleges that she was thrown from the car. The evidence was conflicting and would support either the specific allegation of the complaint or the somewhat equivalent theory that she involuntarily .jumped, from the car under the influence of an excitement naturally occasioned by the unexpected and to some extent portentous surroundings. The learned trial justice charged the jury that “ when a wire breaks and falls or a pole falls there is some reason for it, and it is for the company to explain why and wherefore. I do not understand that they have given any testimony as to why the pole fell or as to why the wire fell. They have only brought one witness here to show that a wire did fall, but the cause of it they hme not given? The evidence justified the charge as quoted, and it must, therefore, be assumed that the alleged negligence of the defendant was properly submitted for the consideration of the jury.

The question which was chiefly presented to the jury under the charge and the rulings upon the requests to charge related to the plaintiff’s right to recover in the event that it should be found that she jumped from the car instead of being thrown, and in this respect the instructions were so conflicting as to require a new trial. In the main charge the court instructed the jury as follows: “ If this car became so violent from any cause that by the explosion of wires or by the momentum at which it was going and the added commotion of the passengers in the car, if by one or any of these things she was thrown out involuntarily, why then she had a good cause of action. * * * But if you find, on the contrary, that the car got in no commotion, and that there was no violence, that on the contrary the car was immediately stopped, and that then without any reason, not involuntarily, but voluntarily, she got down and got off, why then she has got no cause of action and can recover nothing.”

At the close of the charge the following requests, rulings and exceptions appear: “ Defendant’s Counsel: I ask your Honor to charge that even if the car became disordered and violent through the negligence of the defendant, the plaintiff cannot recover if she voluntarily jumped from the car. The Court: I charged that; substantially that. Plaintiff’s Counsel: To which I except. The Court: If even though voluntarily it was induced by the happening of this disorder which has been described here, I think then that it would be attributable to the company. Defendant’s Counsel: I except. I ask your Honor to charge that whether the pole or wire fell or not is of no importance unless that caused the plaintiff to be thrown from the car. The Court: I have told the jury that very clearly. It does not matter anything about the fall of it or your negligence unless it is the thing that caused the hurt. Defendant’s Counsel: I ask your Honor to charge that even if the plaintiff was justified in jumping from the car by reason of fright that she cannot recover in this action. The Court: I decline. * * * Defendant’s Counsel: I ask your Honor to charge the jury that the plaintiff to recover at all in this action must recover upon the theory that she was thrown from the car. The Court: Yes, within the law as I have laid it down. Plaintiff’s Counsel: To which I except.”

The final charge is deemed to be the one which controls the deliberations of the jury. (Goetz v. Metropolitan Street R. Co., 54 App. Div. 365, 369; Freedman v. Metropolitan Street R. Co., 89 id. 486, 488.) The charge as finally given instructed the jury that the plaintiff could only recover if she was thrown from the car, and such instruction necessarily excluded a right of recovery if she jumped even involuntarily through the effect of fear. Although the contrary had been previously charged, it was overcome by the explicit statement that a recovery could only be had upon the theory that the plaintiff had been thrown, and the addition of the phrase “ within the law as I have laid it down ” could not serve to harmonize the apparent irreconcilability to an ordinary understanding.

It is urged by the respondent that inasmuch as the complaint alleges that the plaintiff was thrown from the car, there could be no recovery upon any other theory. She was not defeated upon that ground, assuming the proposition of law involved in the contention to be sound. Personally I am inclined to the view that there could be a recovery under either theory embraced within the plaintiff’s proof. But if the complaint is not broad enough to embrace the case of an involuntary motion on the part of a passenger induced by fear negligently created, the question should be raised and disposed of at the Trial Term or at a Special Term in the first instance.

The judgment and order should be reversed.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  