109 N.Y.S. 1019 | N.Y. App. Div. | 1908
This case has been twice tried. The accident occurred on the 18th day of December, 1903. The plaintiff was a passenger on a north-bound Lexington avenue car. The complaint alleges “ that near the intersection of Forty-second street and said Lexington Avenue the plaintiff requested the conductor in charge of said car to stop the same at Forty-second street for the purpose of allowing the plaintiff to alight therefrom, arid that the said conductor thereupon signalled to the motorman in charge of said car to stop said car; that while the plaintiff was standing on the rear platform of said car. waiting for said car to come to a full stop to permit him to alight therefrom, through the negligence and carelessness of the motorman or of the conductor of said car, the agents and servants of the defend
With this opinion Iugbaham, J., concurred. Scott, J., concurred on the ground that the proof of the happening of the accident did not conform to the allegations of the complaint, concluding his opinion in this langtiage: “ And even if it were possible to hold that the allegation ánd the proof conformed, there would still be the difficulty arising from the absence of any proof that the conductor saw the plaintiff in the act of alighting, or had reason to expect that he would attempt to alight until the car had come to a full stop, since the plaintiff’s declaration had been to the contrary.”
The second trial commenced on the 2d day of April, 1907, and the record presents a bold attempt to avoid the effect of our former decision. Upon the former trial there was no controversy as to where the plaintiff fell. The point ivas within the lines of Forty-second street, and a few feet south of the crosstown track. It having been pointed out by this court that at that particular point plaintiff could not have expected that the car would stop in the middle of the street and across the crosstown tracks, and that by reason of the necessity for throwing off the power in order to pass over the crosstown track, the story of the sudden start and jerk was incredible, the plaintiff upon the second trial, by measurement with a tape measure, placed the point of his fall exactly seventy-nine feet and six inches south of the south line of the Forty-second street track and opposite No. 389 Lexington avenue, and forty-three feet south of the south line of Forty-second street. He also testified that although this court had set aside a verdict in his favor for $10,000 and the opinion of the court had been sent to him, that he had not read all of that opinion; that he had merely looked at some parts of it.
His witness Keating upon this trial testified that the car “ gave a sudden lurch and * * shot on. * " I saw the man
Of course the credibility of witnesses in the first instance is for the jury, but the law places upon this court the duty of examining the facts and determining whether a verdict is supported by.the evidence, or is contrary to the weight thereof. Testimony upon a vital point in a case materially changed to obviate,objections pointed out by the court on a former appeal, unless a sufficient and legitimate explanation is given, is discredited testimony.
In Edall v. New England Railroad Company (40 App. Div. 617), Woodward, J., said : “ Upon the trial his attention was called to the fact that he had testified differently upon the former trial, but no effort on the part of his counsel availed to bring out -a clear explanation of his former evidence consistent with his new version of the accident, and it is difficult to escape the conclusion that the plaintiff modeled his testimony to meet the suggestion thrown out by this court upon the former appeal,” and the verdict was set aside and a new trial ordered.
In Fremont v. Metropolitan St. R. Co. (96 App. Div. 617), a witness testified on the second trial: “ I changed my testimony, then, after mature consideration, after reading the decision of the appellate court in this case. Q. So now you are willing to swear that what you said twice under oath on previous trials is not true? A. That it was not properly conveyed, sir.” Of the testimony of this witness, Hatch, J., said : “ Certainly the evidence is not sufficient in support of a finding based upon Leahy’s testimony, and when it is considered in its entirety, the contradiction and change and the reason for it, we have no hesitation in concluding that the verdict based thereon should not be supported.”
In Healy v. United Traction Co. (115 App. Div. 868), Smith, J., said : “.Upon the former appeal it appeared from the record that plaintiff’s intestate attempted to cross in front of an approaching car when -the car was only thirty-five feet from her. We were of opinion that her attempt to cross under those circumstances was clearly unwarranted in the exercise of reasonable care on her part,
In Fisher v. Central Vermont R. Co. (118 App. Div. 446), Cochrane, J., said : “We have, therefore, the plaintiff at the first trial directly contradicting the plaintiff at the second trial on a question of vital and controlling importance. * * * In my opinion in view of the irreconcilable variance between the two statements, the latter given as it was after plaintiff’s mind had been illumined as to the nature of the testimony essential to a recovery, the plaintiff did not sustain the burden of proof on this branch of the case. This in the first instance was, of course, a question for the jury, but the verdict of a jury is subject to judicial review, and when the court can plainly see that the verdict rests on no substantial basis, such verdict should be set aside.”
In Northam v. Dutchess County Mutual Insurance Co. (68 App. Div. 475), McLennan, J., said : “ It is clear that the addition made by the witness to his former testimony was such and only such as was in effect declared to be necessary by the Court of Appeals in order to entitle the plaintiff to recover, and it is perfectly clear that such testimony, either in form or substance, was not given by such witness upon the former trial. This fact alone was sufficient, without explanation to challenge the credibility of the witness and the truthfulness of his story.”
It would be a disgrace to the administration of justice if a court charged with the responsibility of reviewing the facts should be held bound by the verdict of a jury when it is apparent that evidence has been deliberately changed or added to meet the exigencies of the case as pointed out upon a former appeal. Of course, there may be honest mistakes, misapprehension of questions put, a failure to thoroughly examine upon a given point, and other explanations which may relieve a witness from the charge of intentional
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham, Laughlin, Houghton and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.