156 N.E. 133 | Ohio | 1927
The defendant in error was plaintiff in the trial court and will here be referred to as such. The plaintiff in error will be referred to as the defendant.
The plaintiff in her petition alleged negligence of the defendant company in the overcrowding of its car upon which she became a passenger, and in starting the car with a sudden jerk. Upon trial, the plaintiff testified that the car was crowded when she got upon it, and that several other people got on after her, at the same stop; that she was unable to crowd her way into the car more than 4 or 5 feet; that there was no unoccupied seat; that the car started with a sudden and violent jerk, which threw her against the other passengers around her and threw them against her; that "they knocked against this shin here, but they fell all over my feet." Upon cross-examination, she admitted she had given a statement about the accident to a man from the defendant company, in which statement she stated that the man that kicked her shins was *292 an intoxicated man; that he acted like an intoxicated man, and she guessed he was intoxicated; that he was one of the crowd; that he fell over with the crowd; that the crowd tramped over her, and he was one of the crowd.
At the close of plaintiff's case the defendant moved to arrest the evidence from the consideration of the jury and for a directed verdict, for the reason that the evidence of plaintiff did not tend to prove negligence on the part of the defendant company, which motion was sustained. Motion for new trial was made and overruled and error prosecuted to the Court of Appeals, where the judgment of the trial court was reversed. Error is prosecuted here by the defendant in the trial court.
The sole question presented here is whether there was any evidence, or any reasonable inference which the jury might draw from such evidence, tending to prove negligence upon the part of the defendant; and it is urged by the defendant that the characterization by the plaintiff of the movement of the car as a "sudden jerk" is not proof of negligence, and that, since plaintiff did not testify that such jerk was unusual and unnecessary, therefore it did not tend to prove any negligence on the part of the defendant.
However, it must be remembered that the plaintiff did testify as to the result of such jerk upon the passengers and upon her as one of them. The proof was more than a mere characterization of the jerk as sudden, and was descriptive of the movement of the car.
It is contended by the defendant company that it was necessary for plaintiff to prove that the *293 sudden jerk was unnecessary and unusual, to constitute negligence on the part of the defendant. Perhaps a more painstaking lawyer would have inquired as to this movement of the car, as compared with other and usual movements of the car, and might have called expert witnesses to prove that it is mechanically possible and practicable to start an electric street car without such a jerk, but it is a matter of common knowledge that common carrier electric street cars are not usually started in such a way as to throw their passengers all about the car, and that such cars can be started smoothly and gradually and without a violent jerk. Failure to prove in this case a matter of such common knowledge did not constitute such failure of proof as to justify a direction of the verdict. The judgment of the Court of Appeals will therefore be affirmed.
Judgment affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur. *294
