69 N.Y. 309 | NY | 1877
The cause was submitted to the jury as upon a conflict of evidence as to the terms of the hiring of the plaintiff, the only witnesses being the plaintiff and one of the defendants; the other defendant, although in the city at the time of the trial, and present at the hiring, not being present in court or examined as a witness. The judge properly instructed the jury that the affirmative of the issue was with the plaintiff, and that to entitle him to a verdict the evidence should preponderate in his favor.
The omission of the defence to call as witnesses both of the defendants was relied upon as a suspicious circumstances, and as confirmatory of the testimony of the plaintiff, and bringing a doubt upon that of the defendant who gave evidence. The non-attendance of the absent defendant at the trial may have been a proper subject of remark and for consideration by the jury, and if they under all the circumstances thought his absence suspicious, they might take a less favorable view of the testimony on the part of the defence; but this was the extent to which the plaintiff was entitled to any benefit from the circumstance. (People v. Dyle,
It was not an omission to produce the best evidence, for all the evidence was the same in degree, and that of the absent defendant would but have been cumulative. It is the privilege of a suitor to call every person as a witness who may give material evidence in his favor, and if he omits to do so, he does it at his peril; but there is no duty, and an omission to call all that are within reach, does not necessarily imply a fraud or a design to suppress the truth, or to impose a falsehood upon the jury. The instructions of the learned judge in this case were more stringent and decided than the circumstances warranted, and may have affected the result of the trial. He said to the jury, "it is the duty of every party, in prosecuting their case before the jury, to produce every witness who can convey any light to the jury which *313 will aid them in considering the evidence." The duty intended must have been a legal duty, the neglect of which was a legal wrong to the adverse party, depriving him of a right to which he was fairly entitled, and which he could demand. It placed the defendants in the same category, and subjected them to all the prejudices and inferences of tortious spoliators, and suppressers of documents and other instruments of evidence, and so the jury had a right to understand it. This, followed by the further instruction that "when a witness is within reach, and whose evidence could be produced, the jury have a right to infer that the non-production of the witness is caused by the fact that his evidence would not be beneficial to the party who was bound to produce him," they could scarcely do less than infer that the absent defendant was so absent from design, and would, if called, have corroborated the plaintiff. It was not left to the jury to say whether, under the circumstances, the absence of the defendant was suspicious, so as to authorize an unfavorable inference, but they were told that it was the duty of the defendants to call him, and that the defendants being bound to produce him, his non-production not merely justified a favorable consideration of the evidence for the plaintiff, but that they might infer that his testimony would be adverse to the defendants, thus permitting the jury to give the plaintiff the benefit of the evidence of the unsworn witness, as if he had given evidence in his favor.
The circumstance of the non-production of the absent defendant, although very slight, might have been submitted to the consideration of the jury, but the force of the circumstance should have been left to them, and it was error to charge that the defendants were bound to produce him, and not having done so, the jury might infer that his evidence would have been prejudicial to them. (Gordon v. People,
For this error the judgment must be reversed, and a new trial granted.
All concur, EARL, J., not voting.
Judgment reversed. *314