
    Julia M. Ferry, Resp’t, v. The Manhattan Railway Company, App’lt.
    
      (New York Superior Court,
    
    
      Filed May 2, 1887.)
    
    1. Negligence—Complaint—Motion to dismiss—When consideration of MERITS RENDERED UNNECESSARY ON APPEAL.
    This action was brought to recover damages for injuries resulting from, the negligence of the defendant’s servants in starting a train as she was leaving it. At the close of the plaintiff’s case, no testimony had been given which tended to show specifically wnat had caused the train to move before the plaintiff had alighted. The defendant’s counsel then moved to dismiss the complaint on the ground that tliere was no testimony to show that the moving of the train was due to any negligent act of the defendant's servant. Upon an appeal from the judgment; held, that the consideration of this motion was rendered unnecessary for the reason that before the case went to the jury there was testimony from which the jury were at liberty to infer negligence of the defendant.
    2. Same —Evidence—What is sufficient to sustain finding of.
    
      Held, that the evidence being such that from it the jury might infer that the train had been started by one of the train-men as admitted by him, but that he was not to be credited in his statement that he received a signal,.the case would then be that of the company being responsible for the train moving witnout explanation showing that due care had been used,- and that from this the jury might infer that the defendant was negdgent.
    3. Charge to jury—When unnecessary to charge in addition to charge already made.
    
      Held, that the trial judge having so charged the jury, that they could not if observing the charge find adversely to the defendant on any of the matters referred to in their requests, it was unnecessary for him to charge on any of the matters requested.
    4. Conflict of evidence—What is.
    Held, that the testimony of one of the witnesses on a point and the inference deducible from that of the others on the same point being at variance, it was not erroneous to charge that there was a conflict of evidence on the point and to refuse to charge that there was none.
    Appeal by defendant from judgment, for plaintiff, entered upon the verdict of a jury.
    
      Hugh L. Cole and Howard Townsend, for app’lt; Benjamin C. Hitchings, for resp’t.
   Sedgwick, C. J.

The action was for damages from the negligence of defendant’s servants. The plaintiff was a passenger upon the cars of the defendant. The train had stopped. Several passengers had left the car. The plaintiff was stepping upon the platform, when the train moved on and caused the plaintiff to fall. She w,as seriously hurt.

At the close of plaintiff’s case no testimony had been given which tended to show, specifically, what had caused the train to move before the plaintiff had alighted. The defendant’s counsel there moved to dismiss the complaint on the ground that there was no testimony to show that the moving of the train was due to any negligent act of the defendant’s servants. It will not be necessary to pass upon this proposition for the reason, that before the case went to the jury there was testimony, from which the jury were at liberty to infer the negligence of the defendant.

The defendant examined a hrakeman or guard named Borst, whose place was between cars, nearer the engine than the platform from which the plaintiff was stepping. He proved that he gave the signal which caused the train to move. He also testified that it was his duty not to signal until he had received a signal from the brakeman at the place where the accident happened. The name of the latter was McTaggart. There was no doubt that McTaggart had not given any signal to Borst. In the usual course of things, the signal from McTaggart would be his pulling upon a rope, passing through the car, near its top, and which Borst would be holding. Borst testified that he did not receive a signal, through the rope of the same kind that McTaggart would give in the usual course of things. The plaintiff, however, in rebuttal produced witnesses who testfied that Borst had said, in their presence, that he had not received a signal and he did not know how it was that he came to signal. The jury could, therefore, competently' find, if there were no other testimony on the point, that the train had been started by Borst, as he admitted, but that his statement as to his receiving the signal was not to. be credited. The case would then be, of the company being responsible for the train moving without explanation that would show that due care had been used. The jury might infer from this that the defendants were negligent.

The defendant, in order to make the necessary explanation, called other witnesses than Borst. The testimony of these witnesses was of a kind that called for examination and construction by the jury. If the jury found that these witnesses did not show that Borst received a signal, then the defendant’s case was without a benefit from their testimony. The jury did not necessarily discredit the witnesses for untruthfulness. They . probably did not. These witnesses did not assume to testify directly to the fact that Borst received a signal. They testified to, some facts, which, in the judgment of the jury, did not amount to proof that Borst had received the signal.

These witnesses were passengers standing at the time of the accident about eight feet from the platform where McTaggart was on duty. They, as the jury might find they intended to testify, were standing in the car, with other passengers about them, when the train stopped at the station in question quite suddenly. This caused, some passengers to lose their balance and fall, as it were, against Schneider, one of the witnesses. To keep himself from pitching back he involuntarily raised his hand and took hold of what he believed to be the straps placed there for standing passengers to use. He himself did not think he had a hold upon the rope that has been spoken of until his companion, the other witness named Knewitz, said to him, do you know that you caught hold of the bell rope. Then he took his hand from the rope and then the train started ahead. Undoubtedly the witnesses honestly believed that Schneider, in taking hold of the rope, gave a signal which started the train. But a scrutiny of their testimony shows some things inconsistent with their belief, and the jury might have believed that the facts they swore to had existed and yet not have been convinced that Schneider communicated a signal to Borst.

I therefore think that it did not appear from the whole •case that there was no proof of negligence.

The judge charged the jury, “if you find that the train was started by the witness Schneider in the manner that he says he started it, that then the defendant was not negligent and the plaintiff cannot recover. I charge you if, on the other hand, you find that the train was not started by the witness Schneider in the manner that he .says he started it, that is, if you find that he did not give "the signal to the brakeman Borst which caused Borst to give the signal to the other brakeman, that then the defendant was negligent and the plaintiff is entitled to recover.”

In substance, this gave to the defendant the benefit of a ruling in its favor of all questions of law that could arise. The jury were told that if the facts are as the defendant, claims, then the verdict should be in its favor. It was unnecessary for the judge to charge, as requested, that there was no proof of any defect in the system of communicating signals, or that the method of fixing the bell rope was not the best method of fixing it, or to charge other requests of the same kind. If the jury observed, as it is presumed they did, the charge of the judge, they could not have found against the defendant on any of the matters referred to in the requests.

It is argued that there was error in the judge charging-that there was a conflict of evidence on the point as to how the train started, and in refusing to charge, as requested,

. that there was no conflict of evidence as to how the train, started, and in refusing to charge that the jury were bound, to believe the uncontradicted evidence of the witnesses Schneider and Knewitz as to the manner in which the accident occurred.

The witnesses named did not give testimony as to facts, apart from their opinions, that were intermixed in their statements with facts that conclusively showed that a signal was given to Borst. But between the testimony of Borst as to his receiving a signal and an inference from the testimony of the other witnesses that Schneider had not sent a signal to Borst, there was an opposition that was not improperly termed by the judge a conflict of evidence.

The judge was not in error in his action in the respects now noticed.

The judgment should be affirmed, with costs.

Freedman and O’G-orman, JJ., concur. '  