| N.Y. App. Term. | Nov 15, 1905
This action was brought to recover damages for personal injuries, alleged to have been occasioned by the negligence of the defendant in operating a train upon its elevated railroad, upon which the plaintiff was a passenger. The particular negligence asserted by the plaintiff is a “jerk” or “ jolt,” at the time the train was in the act of stopping at a regular station, that forced the passengers forward, as they were moving toward the exit of the car. The plaintiff testified as follows: “ When the conductor hollered out ‘ Fifty-ninth Street ’ * * * and I saw others getting up, then I got up * * * and when I was just going out, the car gave such a jerk that it knocked
The substance of the testimony of the plaintiff’s daughter, who was with her mother, is that, the car jerked “ and she, with other passengers, was forced forward; that she saw her mother falling, got up and went to assist her as other passengers did.”
From no point of view can it be truthfully said that the evidence in behalf of plaintiff shows that her injury was due to defective means or appliances employed in operating the train. There is no ground for invoking the doctrine of res ipsa loquitur in the plaintiff’s favor. Nelson v. Lehigh Valley R. R. Co., 25 A.D. 535" court="N.Y. App. Div." date_filed="1898-02-15" href="https://app.midpage.ai/document/nelson-v-lehigh-valley-railroad-5183701?utm_source=webapp" opinion_id="5183701">25 App. Div. 535, and cases there cited.
The plaintiff’s case rests upon the fact that the car gave an extrao-dinary jerk, or jolt, that forced the passengers forward and knocked the plaintiff on her back. No error on the part of defendant’s servants in operating the train is pointed out. The evidence is not sufficient to justify the inference that defendant, or any of its servants, were guilty of negligence. So far as appears, the jerk was incidental to the stoppage of the train in the usual course and customary method of operation. We think the rule laid down by this court in Needham v. Interborough R. T. Co., 48 Misc. 522" court="N.Y. App. Term." date_filed="1905-11-15" href="https://app.midpage.ai/document/needham-v-interborough-rapid-transit-co-5409700?utm_source=webapp" opinion_id="5409700">48 Misc. Rep. 522, applies here. See also Black v. Third Ave. R. R. Co., 2 A.D. 387" court="N.Y. App. Div." date_filed="1896-03-15" href="https://app.midpage.ai/document/black-v-third-avenue-railroad-5180033?utm_source=webapp" opinion_id="5180033">2 App. Div. 387 and DeSourcey v. Manhattan R. Co., 39 N. Y. St. Repr. 80. . The motion for the direction of a verdict in favor of the defendant should have been granted.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Scott, J., concurs; MaoLemt, J., taking no part.
Judgment reversed and new trial ordered, with costs to appellant to abide event.