I am unable to concur in the opinion of Mr. Justice O’Brien.
The court, in charging the jury, said : “ In this particular case *328the circumstances testified to by the various witnesses are of such a character that I may safely say to» you that if you believe the witnesses called by the plaintiff, who have testified to the circumstances-under which the accident happened, it must be said that the act of the conductor was a negligent act and such an act as may warrant, a cause of .action on behalf of the plaintiff.” .
The defendant’s counsel excepted to this portion of the charge, and it seems to me that the exception was well taken. By this, instruction the jury were, in substance, told that if they believed the testimony of the plaintiff and her witnesses, the defendant was-guilty of negligence and they could render a verdict for the plaintiff. This clearly was error, “ unless the adoption of his testimony as-true would exclude all inferences to the contrary of such imputation.” (Morrissey v. Westchester Electric R. Co., 18 App. Div. 67; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371.) The riile laid down in .the Sloan case is that, “If the uncontradicted evidence show a. case where different inferences might be drawn from undisputed, facts as to the existence or non-existence of negligence, it has been, ■ the law for many years that such inferences are to be drawn by the-jury under proper instructions from the court.”
The negligence of the defendant, as alleged in the complaint, is-that the plaintiff attempted to become a passenger oñ one of defendant’s cars, arid while the “ car was standing still,” and she was in the act of entering the car, it was suddenly started without warning to her,.by reason whéreof she was thrown to the ground,and injured. On the trial she testified, “ I went to get on the car, and I had one foot up to get to the car when he blew the whistle and then the car started and it jerked, and I swung off and I fell on my left hand.” She also testified, “ I was on the step and I was going into the car ” when it started. “ My left.hand had hold of the. seat I was going into * * * I was in the act of going into the seat.” And the plaintiff’s witness Healy testified that when the car started the plaintiff was standing on the sideboard of the car. This witness also testified that the car was in motion 'when the plaintiff attempted to get on it.
The liability of the defendant, if liable at ah, is by reason of the existence of one of two facts or' both of them, (1) the starting of the car before the plaintiff, after she had attempted to get on the car, *329had secured a safe position; or (2)' the starting of the car in such a way as to cause the plaintiff to lose the position which she had secured. As to the first,, the jury might have found from, the plaintiff’s own testimony that she was in a secure position when the car started. There is no rule which obligates a street railroad not to start its cars until persons taking passage have actually been seated in the car. All that is required is that the car must not be started until the passenger is in a safe position. The jury might also have found from the plaintiff’s own testimony that the car was not started in such a manner as to cause her to lose the position which she had. It is true she testified that the car started with a jerk, but it needs no testimony to inform the court that a crowded horse car must be started more or less with a jerk. Something more than this must be proved in order to establish negligence in this respect. In Black v. Third Avenue R. R. Co. (2 App. Div. 387) this court held that proof of the starting with a jerk was not in and of itself sufficient, proof from which the jury could infer negligence. This being the condition of the testimony on the part of the plaintiff, it seems to me that the court erred in giving the instruction above quoted, because au inference might have been drawn by the jury from the testimony introduced by the plaintiff, that the defendant was not negligent.
For these reasons I am unable to concur in the prevailing opinion.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.