37 N.Y.S. 830 | N.Y. App. Div. | 1896
This is an appeal from a judgment entered upon the verdict of a . jury in favor of the plaintiff in an action tried in the Superior Court of the city of New York, and from an order denying the plaintiff’s motion for a new trial. The action was for damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on one of the defendant’s cars.' It was shown in evidence that on the 14th of February, 1894, at about four o’clock in the afternoon, the plaintiff did enter one of the defendant’s cars at Third avenue and Forty-second street, in the city of New York, and that when about taking a seat, the car started and the plaintiff was thrown to the floor. He alleges that the servant in charge of the appliance by which the car was started so negligently and unskillfully used the same (referring to the grip, by which a moving cable is caught and attached to the car and which furnishes the motive power thereof) as to cause a sudden and unnecessary and violent jerk in its. starting, in consequence, of which the plaintiff was thrown and suffered the injuries he complains of.
A perusal of the testimony as it appears in the printed case, shows an utter want of proof to establish the allegations of the complaint respecting the -cause of the accident. , There is not one word of testimony to show any unskillfulness or negligence of the company’s servant in charge of the appliance by which the movement of the car was controlled. All that is said, is, that the car started with a violent jerk. No testimony whatever was given, respecting the manner of starting a cable car, nor what is the- character of the motion ordinarily produced by the attachment of the grip to the cable; nor anything respecting the character of the motion first imparted by the running cable to the car at the instant the motion
There are many other errors appearing upon the record before us, but in view of the total failure of proof on the subject of negligence of the defendant’s servants, it is unnecessary to consider them.
The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Judgment and order reversed, new trial ordered, with costs to appellant to abide event.