(dissenting).
In my opinion, the trial court erred in not granting appellant’s motion for a judgment notwithstanding the verdict of the jury. In the light of the undisputed evidence there was no evidence of negligence. The grounds of negligence upon which the judgment necessarily rests are (1) in stopping the street car with a jerk, and (2) in failing to continue to cross the intersection instead of stopping.
With reference to the first ground of negligence the only evidence, taking it most strongly in favor of the appellee, is that the car did stop with a jerk. In my opinion, that, standing alone, is no evidence that that act was negligence. Without any reference to the doctrine of emergency there was no evidence that the street car motorman in charge of its operations was negligent in stopping the car with a jerk.
Upon the second ground of negligence, the issue submitted and finding thereon was as follows: “Do you find from a preponderance of the evidence that after the plaintiff boarded the street car and the street car had started up, the car operator was negligent, as the word negligence has been defined to you in paragraph No. 3 of the jury’s charge, in failing to continue to drive through the intersection of said streets ?” The answer to this issue was “yes.” And it was further found that was the proximate cause of the injuries. Whether such issue could have any materiality was wholly dependent upon a fact not submitted to or found by the jury. That fact was whether or not the street car had entered the intersection before the light changed from green to yellow. The pleading of the issue was as follows: “Plaintiff * * * shows that if it shall appear from the evidence that said street car stopped for plaintiff to enter same before said street car entered the nearest cross-walk at said intersection and the green light was followed by a yellow signal before the street car entered such nearest cross-voalk, then and in that event only plaintiff so alleges, and it became the duty of said operator to comply with the following provision of subdivision 1, under (b) of Section 10, * * as follows: ‘If such stop cannot be made in safety said vehicle at the time of appearance of the yellow light may be driven cautiously through the intersection.’
“Plaintiff * * * shows that under the circumstances existing on said occasion such stop ■ could not be made in safety and it was the duty of said operator, instead of making the stop which he did make, to have driven cautiously through the intersection, and said operator was negligent and violated said ordinance in that he failed to drive cautiously through said intersection and was negligent in that instead of driving cautiously through said intersection, he stopped abruptly and roughly and/or in such a manner as to caitse plaintiff to fall and to be thrown as aforesaid.”
It is perfectly clear that the provision of the ordinance upon which the issue is based could have no application except where a vehicle was already in motion upon reaching the intersection, which, in this case, was marked by a line. The pleading recognizes this and conditions the allegation upon the fact that the street car in this case had not crossed said line *420into the intersection. There is no evidence that the street car had not crossed over the line into the intersection when the light changed from green to yellow. In the absence of some evidence of such fact it is entirely proper to say that the plaintiff did not even plead the issue. The issue was pleaded only in case the evidence showed that fact. Therefore, in my opinion, regardless of the doctrine of emergency the judgment was not supported by any evidence of negligence.
It is a matter of common knowledge that a street car in a city, particularly at the time of day when, as the undisputed evidence shows, there is heavy traffic, cannot be operated without the necessity at times of sudden stops. The fact that a street car stops suddenly and that a standing passenger was thereby injured alone creates no presumption of negligence and alone constitutes no evidence of negligence. The presumption of no negligence still obtains in the face of such bare facts.
In my opinion the uncontroverted evidence should be considered conclusively to the effect that the street car at the time the light changed from green to yellow had already crossed over the line and entered into the, intersection and could have proceeded cautiously across the intersection, provided the situation confronting the motorman did not give rise to duties to third parties in the street which made it necessary to stop. The motorman testified that he stopped the car for passengers to enter in such a position that it was already a little over the line. All the evidence and the findings of the jury were that he started up from such position on a green light. Therefore, the ordinance provision upon which liability was predicated was affirmatively and conclusively shown to have no application to the facts. It was not necessary for this to be shown. The burden was upon the appellee to show the contrary. There was no evidence to show the contrary.
The undisputed evidence shows the traffic was heavy waiting to cross from each direction; it was undisputed that the street car-had only proceeded two or three feet until the light changed. It was undisputed and the jury found that the traffic did not wait for the green light but started on a yellow light. In so doing, the traffic negligently put itself in peril. The motorman testified he was compelled to stop to prevent running over or into persons and vehicles crossing the street. There is not one bit of evidence that this is not true. One apparently wholly disinterested witness said he looked out at the time to ascertain why the car stopped, and saw the traffic passing in front of the car which led him to the conclusion that the car stopped to prevent injury.
The doctrine of emergency is clearly presented, but independently of that doctrine, the plaintiff was required to produce some evidence of negligence. If it could be contended that all the evidence showing there was no negligence was that of interested witnesses, which, as already said, is not the case, that does not affect the requirement that there be produced some evidence of negligence. Mere denials of the existence of negligence or testimony to show there was no negligence by an interested witness when the adversary party has the burden of establishing negligence does not alone raise the issue of negligence.