I cannot concur in the opinion of Mr. Justice Cullen, although now, as always, I have great hesitation in differing with his conclusions. His opinion proceeds upon the theory that there was evidence sufficient to submit to the jury the question whether the defendant’s servants started the car before there was sufficient'opportunity for the plaintiff to be seated. This requires a summary of the evidence on that subject. The plaintiff entered the car by the front door, and fell just as she stepped in the door.. She says that she does not know whether the door was closed at the time the car was started, but “ don’t think ” it was. As her back was to the front door, she was justified in giving her testimony on this subject cautiously. This is quité inconsistent with her previous statement, and still more so with the evidence of her other witnesses. Mrs. Cardwell, a witness called by her, testified that she thinks the door was open, and was “ pretty sure” it was open. Miss Cardwell says *17it was still open at the time of the fall. Mrs. Cardwell also testified that the plaintiff had reached about the center of the car, and was turning around to sit down, when she fell.. Miss Cardwell. did not see the plaintiff before she fell, but was watching another lady who entered the car by the rear door at the time when the plaintiff entered by the front, and says that the lady who entered at the rear was already seated when she heard the plaintiff fall.
The defendant’s motorman and conductor both testify that the door was closed and that the motorman, as is usual when a passenger enters the car by the front platform, “ rang her up,” that is, rang the bell to signify to the conductor that some one had entered by the front platform. The conductor also says that the plaintiff took a seat, and that after this he rang the bell to start. This evidence is referred to only as material to the question whether the plaintiff was in a position of safety and whether the car was prematurely started. I think that it affords ample evidence of the fact that the case is not one of those where a car is started before a passenger is within. The plaintiff was in a position inside the car, where, under ordinary circumstances, it could not reasonably be anticipated that she was in any danger by reason of the starting of the car, provided it was started in the usual manner.
The burden of proof, therefore, was on the plaintiff to show that the defendant was guilty of some negligence, either in furnishing improper appliances for motor power or negligently managing those which were in use on the car. Of such facts there is no evidence whatever. On the contrary, it appears that the motor was one of approved construction ; that' to start a car smoothly the motorman must turn the handle at first one point, and afterwards successively to two and three points, to accelerate the speed, and that this is the usual method, and the method pursued by him in the present instance. The plaintiff’s and defendant’s experts alike testified that this is the usual method. There is no evidence whatever to contradict the statement of the motorman, and we must assume that he started the car in the usual manner.
The fact that the plaintiff fell is not evidence that the fall resulted from any negligence of the conductor or motorman. A person who is standing in a car or on any vehicle while the latter is changing *18from, a position of rest to one of motion has a tendency to lose his balance, though not necessarily to the extent of being thrown down. A car cannot be started without a tendency toward. that effect. This is of such common knowledge and observation that a passenger must be presumed to' know and is bound to act with reference to such fact.
In Black v. Third Avenue R. R. Co. (2 App. Div. 387) the Appellate Division of the first department reversed a judgment for the plaintiff, saying (pp. 388, 389): “ A perusal of the testimony as it appears in the printed case shows an utter want of proof to establish the allegation 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. * * * It was sought inferentially to establish that by reason of the plaintiff’s falling when the car started that it necessarily must have been because of something unusual and excessive in applying the motive power, and hence negligence. * * * In what attitude the plaintiff was standing, how his body was balanced, or whether he was not in such a position that any motion of the car on starting would have caused him to lose his balance does not appear. The whole of rthe plaintiff’s case seems to depend upon a mere characterization of the motion by himself and Bis wife and another witness as a violent jerk, which, as before said, is in nowise distinguished from the ordi-. nary initial force of movement of a cable car when started. The case,'therefore, is destitute of proof on the subject of negligence on the part of any of the defendant’s servants in starting the car.”
In Hayes v. Forty-second St., etc., R. R. Co. (97 N. Y. 259) the Court of Appeals held it error to refuse nonsuit where there was no evidence to prove facts warranting an inference of negligence, saying (p. 262): The plaintiff, therefore, gave no evidence which even tended to show that there was any negligence on the part of the company. He must prove something which warrants that inference and not leave his case upon facts just as consistent with care ¡and prudence as with the opposite.”
It has been frequently held that proof of a sudden jerk in the *19starting of a car is not evidence of negligence sufficient to justify a submission of the question of negligence to a jury. (Paulson v. Brooklyn City R. R. Co., 13 Misc. Rep. 387; Bradley v. Second Ave. R. R. Co., 90 Hun, 419; Jonas v. Long Island R. R. Co., 21 Misc. Rep. 306.).
Akersloot v, Second Ave. R. R. Co. (131 N. Y. 599, 600) is cited by Mr. Justice Cullen as authority for the proposition that “It was his (the conductor’s) duty to see that a passenger, lawfully entering the car, was in a place of safety before giving the signal to the driver to proceed.” In that case a woman and a child about five years of age were entering an open car, and before they had taken seats the car started. The prevailing opinion stated that “ The starting of the ear was under the conti-ol of the conductor. * * * If the car started as the plaintiffs child and its attendant reached the topmost step, which was on a level with and a part of the floor of the car, there would be danger that the sudden motion imparted to it, while they were in that position, would throw one or both of them to the ground; ” in that case the child was thrown to the ground and had a leg so crushed by the wheel that it required amputation. The decision was made by a divided court, four judges concurring in the prevailing opinion, and three in the dissenting opinion (reported in 43 N. Y. St. Repr. 291) in which it was said: “ It is difficult to believe that the horses could start a heavy car standing still with a very severe jerk. . It is true that she fell down in her seat, and that George fell out of the car, but we do not think that that circumstance furnishes evidence of itself of culpable- want of care on the part of the driver of the car. When a car is stopped long enough to permit a person desirous of becoming a passenger to safely enter it, he is then in a safe place and must take some care of himself so that he will not be thrown down by any ordinary management of the car. Upon this evidence as it now appears, we are unable' to say that there was .any negligence which can cast the pecuniary consequences of this most unfortunate accident upon the defendant.”
Grotsch v. Steinway Railway Co. (19 App. Div. 130) was a case where a woman entered a car and was holding.on a strap, there being no seat for her to occupy. While so' standing the car was suddenly started, the strap broke and she and several other persons *20were thrown to the floor with great violence. The court, Patterson, J. (who also wrote the opinion in the Black case), said: “ Several witnesses testify that the car was started with great violence, and the inference is fair that that violence could not have been the result of anything else than the improper application of the power to move the car. It was so great that several of the passengers inside the car were thrown on the floor, and the witness Rohrecker testifies that as he reached the door of the car the jerk was given; the passengers fell back against him, and that he put out his hands to hold them back, and by that means saved a child from having its head crushed. Other witnesses testify to the excessive force with which the car was started., That this must have been the result of negligence is the reasonable inference, and in this respect the case is entirely distinguishable from Black v. Third Ave. R. R. Co."
I am of the opinion, therefore, that the court ought to have dismissed the complaint on the motion made at the close of the plaintiff’s evidence and renewed at the close of the whole evidence, on the ground that there was no evidence that the car was negligently started or was started in any unusual manner, and on other grounds stated by the defendant’s counsel. In this view I am confirmed by the decision of the learned justice who presided at the trial. He directed the argument of the defendant’s motion to set aside the verdict to be heard on October 29, 1897, and after a consideration of the matter which was not concluded till January 6, 1898, set aside the verdict as being contrary to the evidence and contrary to law. I think that great weight should attach to his opinion, in view of the fact that the justice who hears the witnesses in a trial must thereby form some opinion of the merits of a controversy. It is with great hesitation that, in this case, I am compelled to differ with the opinion of my learned associate, but I have no hesitation in saying that I think substantial justice will be done by affirming the order for a new trial.
Since the foregoing was written, the Court of Appeals, Gray, J., writing, in Stierle v. Union Ry. Co. (15.6 N. Y. 70), has delivered an opinion in which the doctrine upon which I have based my opinion is clearly and forcibly stated. The trial judge had charged the jury that, “ in respect to carrying passengers, a railroad company is bound *21to exercise all the care and skill which human prudence and foresight can suggest to secure the safety of their passengers; ” and to this the defendant excepted. The General Term of the Court of Common Pleas for the city and county of New York held that this was reversible error, and the Court of Appeals affirmed such reversal, saying: “ The obligation of carriers of passengers to exercise the highest degree of care, which human prudence and foresight can suggest, only exists with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars and other conditions endangering the success of the undertaking. (Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 678 ; Palmer v. Pennsylvania Co., 111 id. 488; Palmer v. D. & H. C. Co., 120 id. 170.) In every case the degree of care to be exercised is dependent upon the circumstances, and if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the strict rule requiring the highest degree of care and of human skill would be applicable.
“ The common carrier is not an insurer of the safety of its passengers ; but it is, and properly should be, bound to use its utmost skill and vigilance to guard against the possibility of accidents from the condition of its road and of the machinery used in the transportation of passengers. In this case the plaintiff, if he was to be believed, was injured because of the alleged negligent manner in which the driver of the car attempted to move or switch his car from one track to the other, in order to cross the Harlem river bridge, then being repaired and permitting the use of only one track. Under those circumstances, the defendant was only liable for the failure of the driver to use that skill and care which would be required of an ordinary careful and prudent man.”