
    Anthony C. Guntzer, Respondent, v. The Yonkers Railroad Company, Appellant.
    
      Negligence — testimony inconsistent with physical laws as the basis for a verdict.
    
    On the trial of an action, the complaint in which alleges that the plaintiff sustained injuries in consequence of being, thrown to the ground while attempting, to alight from one of the defendant’s street cars, testimony by the plaintiff that he was thrown forward by a sudden forward motion of the car, does-not require the reversal of a judgment in his favor on the ground that, under ; the circumstances testified to by him, he would have been'thro.wn backward and not forward, as in accidents of this character many circumstances may occur, and many movements of. the body take place which do not appear in evidence.
    Appeal by the defendant, The Yonkers Railroad Company, from :a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of October, 1899., upon the vérdict of a jury for $500, and also-from an order entered in said clerk’s office on the 16th day of November, 1899, denying the defendant’s motion for a new . trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      James M. Hunt, for the respondent.
   Goodrich, P. J.:

The plaintiff took passage at Yonkers on an open car of the. defendant, bound north and marked “ Hastings,” the place to. which he wished to go, and paid his fare to the conductor. Before reaching Hastings the car was switched off and with a new conductor started south instead of going to Hastings. The conductor asked the plaintiff for his fare and he refused to pay it for the reasons, already stated. There Was some.altercation between them and the plaintiff rang the bell to stop, when the conductor rang to go forward ; and this conflict of signals was repeated. The plaintiff alleged in the complaint that “ the car did slacken its'speed and came nearly to á standstill, when the conductor violently jerked the signal bell and rang it four times; ” that, the motorman “ put on so much . power in starting the car that the' plaintiff was thrown out of the car to the ground,” breaking his arm and otherwise injuring him.

At the trial the plaintiff testified that' the “ car came pretty near to a standstill; I believe it was to a standstill. I was getting ready to get off the car — it was a down step — to put one foot out. With that he gave four bells and the sudden lurch threw me forward * * ". Q. What motion of the car threw you out ? A. The sudden motion, sudden jerk. Q. Sudden starting? A. It'must have thrown me to the street forward. By the Court: Q. Sudden motion which way ? A. Going forward.”

The plaintiff recovered a verdict of $500, and the defendant appeals. The sole ground for reversal contained in the defendant's brief is that the “ judgment is based on a contravention of a physical law and should not stand.” The argument is that if, as the plaintiff was getting out of the car, it started forward with a sudden jerk, as the plaintiff testified, he would have been thrown backward and not forward, and that his testimony cannot possibly be true. The only case cited for the appellant is Fox v. Le Comte (2 App. Div. 61), where this court said (p. 63) : “ Of course the court would allow no verdict to stand that Was based on the negation of a well-known and accepted scientific fact of common knowledge, or on the existence of a physical impossibility.” But the present case, according to the evidence, does not necessarily rest upon the breach of a physical law. The plaintiff weighed 300 pounds. He says he was sitting with one side of. his hip on the seat and his- foot on the running board, about to get out, when the jerk threw him out and forward. The court submitted to the jury the question, which fairly arose on conflicting evidence, whether the plaintiff jumped while the car was in motion, or whether he was thrown off. There was evidence that another person in the car was thrown forward and backward, doubtless owing to the conflicting signals, and that the car went back and forth.”

The defendant’s counsel, at the close of the plaintiff’s case, moved to dismiss the complaint “ upon the ground of the inherent improbability of this story; ” and at the close of the defendant’s evidence renewed the motion, on the ground that “ the statement of the plaintiff must be based on the contradiction of a well-known physical law that the sudden stopping of a car will tend to throw the body backward and not forward.” He also asked the court, in substance, to charge that there could be no verdict for the plaintiff by reason of any sudden forward jerk of the ear. The court charged; “ If he were sitting in the car, I suppose that would be so, because he-would be jerked backward in his seat; but the question where he was,, of .course, I leave. to the jury, * * * The physical facts of the case the jury will take notice of.”

In an accident of this character, many circumstances may occur and many movements, of .the body may take place which:'do not appear in evidence: The particular method of the fall may result from such undisclosed movements, and it is impossible to say with certainty exactly hów a person 'alighting from a car will fall as a result of a sudden forward jerk of the car. The court, had charged with great liberality to the defendant as follows : The. law is that whoever gets off a. car while it is going,, arid is thereby hurt, has no cause of action. The law is,, that sooner than do that, a .passenger • should Wait a block or two blocks ; wait: until it stops and then get Off. If you do not want to do that, and .jump off or step, off,: you have got no redress in the law. That is the settled law' of thé State, and we take it as it is. So in -which way did it occur ?. Was he.,, by the violence of this car jerking-forward, pitched .out, or did he jump off or step off, -whichever it is. Row,, whichever, way you dedide that fact, you must decide the case. Ro.féar or favor about it. If they jerked forward this car negligently and threw him out, he is entitled = to recover. If, on the contrary, he stepped out or jumped out or got out, while it was going, he has no. cause.of. action here.” .

. We are not required to express any opinion as to the correctness of this portion of the charge, as it. was favorable to the defendant. Under the allegation of the method of injury contained in the complaint, the jury were not bound to find the exact manner in which the plaintiff was injured, whether he was jerked and thrown off forward or backyard. , They had the' right on all the' testimony to; say whether the plaintiff was guilty of contributory ¡negligence and the defendant guilty of negligence which caused- the injuries,. and they have found these questions in favor of the plaintiff, .

,' We see no. reason, to interfere with the judgment.. : ¡

. Judgment and order unanimously affirmed, with' costs..  