87 N.Y.S. 523 | N.Y. App. Div. | 1904
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
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 cer
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
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.