I cannot agree to the affirmance of this judgment. The verdict,, in my opinion, is not only against the weight of, but Contrary to, the-evidence.
The negligence of the plaintiff alleged in the complaint is that the “ conductor negligently and carelessly jumped on to the platform of said car and struck or pushed the plaintiff with such force and violence as to cause him to lose his hold on the dashboard, and knocking him off on to the pavement, where he was severely and permanently bruised and injured * * This is the issue-which was tried, and this is the issue which was submitted to the *541jury, the learned trial justice charging that the plaintiff’s “ allegation is, and all of his proof is directed to that allegation, that he was crowded off the car or knocked off of the car, or pushed off of the car by the conductor. He cannot recover in this action unless you are satisfied that he was knocked or crowded or pushed off the car by the conductor.” The testimony which, it is claimed, established the defendant’s negligence was given by the plaintiff and by the witnesses McOinley and Giblin. ' The testimony given by these witnesses, the most favorable to the plaintiff which I have been able to find, is as follows : The plaintiff testified: “ The conductor came along •and ran up on the right side of the car asking for fares and transfers. I had my transfer in my right hand like that (indicating). He made •an attempt to get on and fell off in the gutter; then he made a second attempt and I slipped down, holding on to the bar as long as I could, and I fell and my two feet fell on to the cobblestones, and then I felt my foot under the wheels.” He also testified, on being recalled, •after his direct and cross-examination had been completed, in answer to a question as to how the conductor came to fall: “ He couldn’t get on, it was so crowded. I can’t tell you whether he fell in the •street or whether he simply slipped off with his feet on the step. He fell off. He didn’t continue to hold on to the rail. He fell off in the street. * * When he tried to get on again he did not ■catch hold of this same handrail. He said, ‘ Make room there,’ and he gave me the elbow like that (indicating). He did not have hold ■of any rail at that time. He didn’t catch hold of either the handrail or the dashrail at that time, but he jumped on the step and said, * Make room,’ and that is just how it happened.” McOinley testified, referring to the plaintiff: “ Q. You don’t claim that this conductor touched the boy, do you ? A. I suppose he brushed by him in trying to get on.” And Oiblin, also referring to the plaintiff, testified: “ Q. Do you say he touched that boy at all? A. Yes. Q. What did he touch him with ? A. He touched him with his ■elbow. Q. How do you know it ? A. Because I felt the force of his two elbows. He jumped on between both of us. Q. You know he touched you, but you don’t know that he touched the boy ? A.. I seen both of them go off together. That is all I know.”
I am unable to see how it can be seriously claimed that the testimony of these witnesses, conceding it to be true, as we must, estab*542lished the allegations of the complaint that the plaintiff was struck or pushed by the conductor with such force or violence as to cause him to lose his hold on the dashboard, “ knocking him off on to the pavement,” and I do not think that an inference to that effect can fairly be drawn from it.
There was no allegation in the complaint that the overcrowding of the car was the cause of, or in any way contributed to, the plaintiff’s injury, and that question was not presented to or determined by the jury, and under the pleadings and the issue tried we have no right to consider that fact. The rule is well settled in actions of this character that the plaintiff must fail if the evidence does not show that the injury was the result of some cause alleged in the complaint and proved on the trial for which the defendant was responsible; and where the proof consists of circumstances, then these circumstances must be established and not left to rest in conjecture ; and when the circumstances are shown, it must appear that the inference sought is the only one which can fairly and reasonably be drawn from the facts. (Laidlaw v. Sage, 158 N. Y. 73, 101; Ruppert v. Brooklyn Heights R. R. Co., 154 id. 90.) Under the facts here presented it can just as fairly be inferred that the plaintiff slipped or fell off the car, or that both he and the conductor were pushed off by other passengers standing on the platform, as it can that the conductor struck or pushed the plaintiff with such force as to cause him to fall.
The conductor had a right, and it was his duty to collect the fares and tickets of passengers, and to go through the ear and upon the platform; if it was necessary for him to do so, for that purpose. There being no allegation in the complaint or claim made upon the trial that the defendant had negligently permitted the car to be overcrowded, that fact could not be considered as an act establishing defendant’s negligence. The proof must go beyond that and show the conductor did what the plaintiff alleged, namely, struck or pushed him with such force or violence as to cause him to lose his position on the car by reason of which his injuries were sustained.
I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment affirmed, with costs.