
    Abraham Goodkind, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—passenger standing up in a street car, grasping a strap, thrown down- and injured, by a violent jerk of the car — when a charge that the plaintiff was-entitled to recover, if the jury found certain facts, is improper.
    
    Upon the trial of an action to recover damages for personal injuries, sustained hy the plaintiff while a passenger upon one of the defendant’s street cars, the.plaintiff gave testimony tending to show that while standing up in the car, holding on to a strap provided for that purpose, the car, after coming to a. stop, started with a violent jerk which caused him to .lose his hold upon the-strap and to he thrown down and injured.
    The court charged, at the request of the plaintiff, and over the defendant’s-, exception, “If the jury find that the particular car upon which the plaintiff was a passenger was caused to start forward without notice or warning to the. plaintiff from a position of rest with a sudden and unusual lurch forward, so-violent as to cause the plaintiff and other passengers in the car to he thrown in the manner testified to by plaintiff and his witness Minzesheimer, and if the jury further find that the car could have been started by the exercise of a reasonable degree of skill and care on the part of the motorman controlling the car-without such sudden, violent and unusual lurch, provided they believe there ■ was such sudden, violent and unusual lurch at all, and if they should further find that the seats in the car were all occupied, and that plaintiff was standing inside the car, holding on to a strap provided for such purpose, at the time of such lurch, and Was solely by reason thereof thrown down and received the' injuries that were testified to in this case, then the plaintiff would be entitled to a verdict;”
    Held, that the charge was erroneous, in that it permitted the jury to find the defendant liable, without finding that it had been guilty of negligence, or that such negligence was the proximate cause of the accident, of that the plaintiff was free from contributory negligence;
    -That the fact that the car had - started with a jerk and that it could have been started without a jerk did not establish, as a matter of law, that the defendant had been guilty of negligence; that this question was one of fact for the jury to determine.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1903, upon the verdict of a jury for $4,000,. and also from an order entered in said clerk’s office on the 2d day of July, 1903, denying the' defendant’s motion for á new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Otto Horwitz, for the respondent.
   Ingraham, J.:

The plaintiff, a,, passenger upon one of the defendant’s cars, was-standing in the car holding on to a strap provided for the use of passengers. While in this position he was thrown or fell and sustained injuries for which he has recovered in this action. He testified that the car came to a-stop, and was started with a violent jerk which caused him to lose his hold upon the strap, and he was thrown down. The learned counsel for the appellant-admits that the evidence justified the submission of the case to the jury, but relies Upon two exceptions, one to the admission of testimony and, the other to the charge of the court made at the plaintiff’s request.:

We are forced to reverse this judgment because of the exception to the charge relied upon by the defendant. The court, at. the request of the defendant,. had charged that the burden of proof in this action rests upon the plaintiff to establish both the essential elements in his cause of action, to wit, the' negligence of the defendant and the absence of any negligence on the part of the plaintiff, and' the plaintiff is bound to make out more than a balanced case.” Not satisfied with this the. plaintiff’s counsel requested the court to charge: “ If the jury find that the particular car upon which the plaintiff was a passenger was caused to start forward without notice or warning to the plaintiff from a position of rest with a sudden and unusual lurch forward, so violent as to cause the plaintiff and other passengers in the car to be thrown in the manner testified to by plaintiff and his witness Minzesheimer, and if the jury further find that the car could have been started by the exercise of a reasonable degree of skill and care on the part of the motorman controlling the car without such sudden, violent and unusual lurch, provided they believe there was such sudden, violent and unusual lurch at all, and if they should further find that the seats in the car were all occupied, and that plaintiff was standing inside the car, holding on to a strap provided for such purpose, at the time of such lurch, and was solely by reason thereof'thrown down and received the injuries that were testified to in this case, then the plaintiff would be entitled to a verdict.” The court charged as requested and the defendant excepted.

Where the liability of a defendant is based upon negligence, to establish such liability the jury must find that the injury was caused by the negligence of the defendant, and it is error for the court to charge as a matter of law that if the facts are as testified to by the plaintiff’s witness, the plaintiff is entitled to a verdict. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309.) The application of the maxim res ipsa loquitur will under certain circumstances sustain a finding of negligence, but this is simply an application of the principle that a fact may be proved by circumstantial evidence. Where that maxim is applicable there must still be a finding of negligencey the jury based upon competent' evidence to entitle the plaintiff to a verdict, and the question as to whether negligence existed is a question which must be determined by the jury and not by the court as a matter of law. This rule has been constantly reiterated in this court and in the Court of Appeals. It is quite proper for the court to instruct the jury that if they find that a certain condition existed, then a question as to whether the defendant was or was not guilty of negligence is presented for their consideration, and a finding that the defendant was guilty of negligence would he- sustained. But that is a very different proposition from a statement to the jury that if they find certain facts the plaintiff is entitled to a verdict. In such a direction the jury are charged as a matter of law that the facts stated constitute negligence, instead of leaving the question as to whether there was negligence for the jury to determine.

The questions for the jury were : Did the defendant’s employee start the car with a jerk which threw the plaintiff down and injured him, and, if they did, was such a starting of the car negligence ? An instruction to the jury that if the car started- with such a jerk, and it could have been started without the jerk, the plaintiff was, as a matter of law, entitled to a- verdict, withdrew from the jury the crucial questions which they were required to determine, namely, whether any act of the defendant’s employees which was negligent caused the jerk which injured the plaintiff. As was said by Martin, J., in Kellegher v. Forty-second St., etc., R. R. Co. (supra):The standard by which the defendant’s acts were to be judged was also largely a question of fact, and whether the acts proved came up to or were.-below that standard was peculiarly a question for the jury.”

There was evidence on the part of the defendant that the plaintiff Was seated in the car before the car started, and that there was no violent jerk caused by any act of the' defendant’s motorman, or those engaged in operating the car; and yet the jury were instructed that if they found that the car started with a jerk and plaintiff was thrown as testified to by the plaintiff and Minzesheimer, the plaintiff was entitled to a verdict without requiring the jury also to find that the starting of the car by the defendant in the manner described was the cause of the accident.- Not only must the negligence- of the defendant be established, but such negligence must be shown to be the proximate cause of the accident. This charge violated the established rules in relation to what it was necessary for the jury to find in order to establish the defendant’s liability, both in failing to' require the jpry to find the defendant guilty of negligence, and in permitting a verdict for the plaintiff without a finding that such negligence was the proximate cause of the accident and that the plaintiff was free from contributory negligence. It follows that the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  