This action was brought originally in the Cuyahoga Common Pleas by Anna Lamos against the Cleveland Railway Company for damages sustained by reason of the alleged negligent operation of a street car by an employee of the Compnay.

It appears that Lamos was standing in the car and that by reason of an alleged “unnecessary jerk” she lost her balance and fell thereby sustaining personal injuries. Her testimony was unsupported by that of_ other witnesses and the company produced witnesses who testified that there was no “unnecessary jerk”.

The judgment of the Common Pleas in favor of the Company on a directed verdict was reversed by the Court of Appeals on the ground that the case should have been submitted to the jury under the allegation in the petition “that the car started with an unnecessary and unusual jerk”.

The Company in the Supreme Court contends :

1. That the scintilla rule does not apply because there was no evidence to show negligence in the operation of the car.

2. That the allegation of an unusua Ijerk does not show actionable negligence.