JULIE S. HUESER, as Administratrix, etc., of THEODORE A. HUESER, Deceased, Respondent,
NEW YORK TRANSPORTATION COMPANY, Appellant.
APPEAL by the defendant, the New York Transportation Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1910.
Charles F. Brown [Theodore H. Lord and Arthur K. Wing with him on the brief], for the appellant.
Frederick R. Rich, for the respondent.
JENKS, P. J.:
This is an appeal from an order of the Special Term that grants a new trial to the plaintiff upon the grounds of newly-discovered evidence and of surprise. The plaintiff's husband, attempting to cross Fifth avenue near Thirty-fifth street in the borough of Manhattan, New York city, came in collision with the defendant's electric cab and received injuries that caused his death. This action is brought to recover damages for the defendant's negligence. The theory of the plaintiff was that her intestate had halted to permit the traffic to pass, when the defendant's electric motor cab swerved out of the line of traffic and struck him. The defendant's version was that as the intestate dodged in and out of the way of the vehicles in the street, he stepped back suddenly to avoid a vehicle and brought himself into collision with the defendant's cab then moving in the line of traffic.
The main question litigated was whether the defendant veered out from the accustomed line of traffic required in that street. The learned court without exception instructed the jury that, unless 'the cab did come out of line and struck him [plaintiff's intestate], in no case could there be a verdict for the plaintiff.' The contention of the plaintiff was supported at the trial by the testimony of her witnesses Wise and Sullivan, who were apparently disinterested, and who were in the avenue at the time of the accident about their business respectively. The proposed new testimony upon this issue is, therefore, cumulative. The new witnesses whose affidavits bear upon this issue are Engman and perhaps Meagher. Engman, who was sewing in a window nearby, deposes that he saw the electric brougham come up from behind, turning out at the middle of the street, going at an estimated rate of 25 miles an hour, and that it knocked the intestate down and dragged him for 15 feet. Meagher, who was walking in the avenue, had his attention arrested by a call, and looked to see the rear wheels of the brougham passing over the intestate. He deposes that the brougham was not following any other vehicle, but appeared to be passing a horse and carriage
at the rate of 25 miles an hour. This testimony might permit the inference that the defendant's cab did not keep in line. Although credibility is a question for the jury, yet the Special Term and this court may consider the reputation and character of the proposed witnesses in determination of their probable probative force. ( Hagen v. N.Y. C. & H. R. R. R. Co., 100 A.D. 218.) Now Meagher deposes that he was not called as a witness because he informed an inquirer on behalf of the plaintiff that he did not see anything of the accident save that the brougham ran on the sidewalk. And his avowed reason for his lie is that he had no desire to be drawn into the case, as he had 'no time to lose and did not care to be bothered about it.' Of course, as a witness he would speak under the sanctity of an oath or affirmation, but nevertheless we have the record of a deliberate lie for mere convenience, which he now repudiates to help, 'of my own volition,' the widow of the intestate who had lost her support. Would the testimony of the former witnesses, Wise and Sullivan, which was not considered by the jury as sufficient to establish the plaintiff's theory, reinforced by that of Engman and Meagher, probably change the result so that the jury would find that the defendant's car did veer out of the line of traffic to strike the intestate? For this is a test which must be applied. (Kring v. N.Y. C. & H. R. R. R. Co., 45 A.D. 373; O'Hara v. Brooklyn Heights R. R. Co., 102 id. 398; Hagen v. N.Y. C. & H. R. R. R. Co., supra; Baylies N. T. & App. [ 2d ed.] 570.)
We may assume that the defendant's former witnesses are accessible and would adhere to their testimony. The chauffeur, not then in defendant's employ, testified that he did not pull out of line and never moved out of it. Smith, who was walking in the avenue at the time, testified that the intestate was walking diagonally among teams; that he stopped, hesitated and turned back, and came right in front of the cab that struck him; that he turned and moved in front of it sideways. Hollyer, who was driving a horse and hansom, testifies that he saw the intestate leave the sidewalk 15 feet below the crossing and take a diagonal course, and that he stepped back against the dashboard of the cab. Sergeant Ryan of the police, in charge of the traffic at this point, testified that the intestate stepped right in front of the automobile; that the motor car did not turn
out of the line, but followed a straight line with all of like cars. Burton testifies that he was in the avenue and that the intestate stepped off the curb ten feet in front of him; that the intestate was 'dodging' the vehicles, and in so doing he dodged back into collision with the cab, which was in the second line, and that he did not see that cab 'swing out at any time' to pass vehicles in front. McCarthy, who was being driven in a cab, noticed the intestate 'back in' and then saw him struck by the defendant's cab. He did not notice before the accident whether it had turned off to go around other vehicles. But he testifies: 'All were in one line of carriages coming down. This automobile was in this line.' I am not convinced that this new evidence would probably enable the plaintiff to overcome the evidence presented by the defendant upon the admittedly crucial point of the case.
I may comment that there was no suggestion of surprise made at the trial. The affidavit of one of the attorneys and counsel for the plaintiff shows that before the trial the defendant was requested to concede that the death was due to the collision, and that accordingly such concession was made on the record. The affiant further says that he had the right to rely thereon; that he was not required to make any pre-paration to meet any evidence that might be offered as 'to the killing,' and that he was nonplussed at the trial by the defendant's testimony that the brougham 'did not pass over body of said deceased, and that the deceased backed into the brougham and struck his head against the dashboard, which, of course, was clearly evidence tending to show lack of negligence on the part of the defendant,' and that it must 'be evident * * * that neither deponent nor his said counsel had the slightest idea that such evidence would be offered.' But there was no question raised that death did not ensue from the collision. And I fail to see how the concession that collision was the cause of death misled the plaintiff to believe that the defendant admitted that the collision was due to the veering out of line, or that the defendant would not ...