—In May, 1887, the plaintiff’s son George, then about five years of age, went with Miss Kerkow, a woman of mature age, to the corner of Second avenue and Thirtieth street in the city of New- York to take passage on one of the defendant’s cars. She signalled to the car and it stopped. It was an open summer car with seats running crosswise, and it could be entered by steps on the sides. She stepped into the car with George, holding him by the hand, and after they were in the car and before they were seated it started, as claimed by her, with a jerk, and she fell in a seat and George fell out of the car and was seriously injured. Subsequently the plaintiff brought this action to recover for the pecuniary loss caused to him by the injury to his son.
Miss. Kerkow was the sole witness on the part of the plaintiff to prove the circumstances and occasion of the accident. Her testimony is clear that she was in the car with George before it was started. She does not say what occasioned the jerk or how violent it was. She simply states that the jerk was such that she fell into the seat of the car and George fell out of the car, or was thrown out. There is no evidence that the horses were mismanaged, or *73that the driver was careless in starting them, or that he started them with more energy than was necessary at the time and place. 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.
The judgment should be reversed and a new trial granted, costs to abide the event.
. Judgment affirmed, with costs.
Andrews, Peckham and O’Brien, JJ., concur; Earl, Ch. J., reads dissenting opinion, with whom Finch and Gray, JJ., concur.