117 N.Y.S. 119 | N.Y. Sup. Ct. | 1909
Plaintiff’s intestate was a brakeman in the employ of the defendant, and working on its division running from Geneva to Naples, N. Y. On the 23d day of December, 1905, he had made his usual trip to Naples, leaving Geneva in the morning and returning in the evening. There is a station on the outskirts of the city of Geneva
The case was tried at the Ontario Trial Term in October, 1907, and resulted in a nonsuit; it being held by the trial court that:
“The causes of the accident are purely speculative, and I cannot see that there is any evidence here by which we can rightfully infer, where an inference. can rightfully be drawn, either that the decedent had been free from contributory negligence, or that the defendant had been negligent in any duty that it owed to its employé.”
The plaintiff appealed to the Appellate Division, and the judgment of- -the trial court was reversed. The defendant thereupon appealed to the Court of Appeals, and the order of the Appellate Division was reversed, and the judgment of the trial court dismissing the complaint was affirmed; the Court of Appeals saying, in an elaborate opinion written by Judge Hiscock, that:
“If it were established that a truck- was defective and at a right position to cause the accident, it would be permissible to find that it did in fact cause it.”
On the trial of the action proof was offered by the plaintiff tending to show that a truck, which it was claimed was one of the trucks under the derailed car in question, was defective, and was the cause of the accident; but there was no evidence that this defective truck was under the forward end of the car when the accident occurred, and it is the claim that the accident must have occurred because of the derailment of the forward truck of this car on which plaintiff’s intestate was standing in the discharge of his duties, and plaintiff' asks for a new trial on the ground that she is now able, by evidence discovered since the former trial, to show that the defective truck was in , fact the forward truck of the derailed car, and that therefore a question for the jury would be presented on the question of the defendant’s negligence.
There is no question but that this court has power to grant an application of this character, provided it appears that the failure of the plaintiff to have this evidence on the former trial was not occa
The circumstances in connection with this case were exceptional. The plaintiff, a young woman, suddenly being informed of her husband’s tragic death, was not in a'position either personally or to have her friends go to the scene of the accident immediately and make a thorough investigation to discover evidence, and I think the moving papers show that the plaintiff exercised that degree of diligence to discover evidence in this case which could be expected under the circumstances. The law did not require her to exercise the highest vigilance to discover evidence; but she fulfilled her obligation when she exercised reasonable diligence in that regard. The plaintiff here undoubtedly exercised reasonable diligence to discover evidence, and the delay in making this application does not amount to laches which would preclude her from receiving the relief she seeks, because the delay has been satisfactorily explained, so I think this application should be granted; but the question of terms presents a more serious difficulty.
The learned counsel for the defendant insists that, if this application is granted, it must be on condition that plaintiff pay all costs and disbursements to date. In view of what has been shown as to the circumstances of this plaintiff, to impose such conditions would be harsh indeed. In this matter justice requires that the plaintiff be given an opportunity to present her newly discovered evidence on another trial, and on terms that are reasonable and right and fair under the circumstances, and conditions ought not and will not be imposed with which the plaintiff cannot possibly comply.
The motion for a new trial is granted, on condition that the plaintiff pay to the defendant’s attorneys, within 30 days after the entry and service of the order herein, costs and disbursements of the former trial and $10 costs of this motion, the costs hereby allowed not to include costs before notice of trial, or costs after notice and before trial, or any costs taxed for taking depositions, or for any term fee prior to thie'trial, or costs of either appeal, the costs hereby allowed being merely those of the former trial, together with $10 costs of this motion; and, in case of- her failure to make the payments as hereinbefore indicated, the motion is denied, with costs.