146 N.Y.S. 604 | N.Y. App. Div. | 1914
Lead Opinion
The plaintiff was very seriously injured in consequence of a collision with a trolley car owned and operated by defendant. The accident happened at about seven o’clock in the morning on September 1, 1909, upon a road described as the Boulevard near the village of Rockaway Beach. The plaintiff was living in a settlement known as Tent City, lying between the Boulevard and the ocean. The Boulevard was a long street or road, and at the place where the accident happened was partially built up on each side with small shops and buildings. The plaintiff was seriously injured about the head, one consequence of which was that she was unable at the trial to recall any of the circumstances attending the accident, although her memory on all other subjects appeared to be excellent. She called witnesses, however, who described the accident and plaintiff’s
The testimony of plaintiff’s witnesses shows that the Boulevard at the point of the accident was about thirty-five'feet wide; the car was running easterly upon the southerly track, the southerly rail of which was ten feet from the curb, the distance between the rails being five feet. Plaintiff left the southerly curb with the apparent purpose of crossing the Boulevard. She started to cross diagonally, facing the car. When she left the curb the car was about one hundred and sixty feet westerly, running east at a high rate of speed. Plaintiff continued to walk rather rapidly, crossing or attempting to cross the tracks diagonally, still with her face in the direction towards which the car was coming. Before she had fully crossed the tracks the car hit her.
There seems to be no escape from the conclusion that whether defendant was negligent or not, plaintiff was unquestionably guilty of contributory negligence. She deliberately walked along the track in the face of a rapidly approaching car, which must have been visible to her if she had looked, and, without changing her pace or her course, allowed herself to be run down. It may be that, if she retained her memory as to the accident, she would say that she did not see the car until it was actually upon her. But this, even if true, would not absolve her from the charge of negligence. She was bound to look, and if she had looked she could not have failed to see the approaching car. If she saw it and made no attempt to avoid it, but relied wholly on the carefulness of the motorman, she was guilty of contributory negligence. Looked at from any angle, and considering only the testimony offered in behalf of the plaintiff, we see no escape from the conclusion that the evidence affirmatively shows that the plaintiff was guilty of contributory negligence. The complaint should have been dis
Being satisfied that the complaint should have been dismissed upon the undisputed facts, and that, upon a new trial upon the same evidence, it would be the duty of the trial court to dismiss it, the question is presented as to what order we should make. Should we order a judgment of dismissal, or must we go through the formality of sending the case back for a new trial, in order that the trial judge should make the order which inevitably must be made upon such new trial ? This presents an interesting and important question, which frequently arises and which may as well be disposed of now as at another time.
The Constitution of the State provides (Art.- 1, § 2) that “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” It must, therefore, be conceded at the outset that in what is known as a common-law action, like the present, the right of trial by jury is preserved, and if there be any question of fact to be tried it must be tried by a jury unless the parties waive their right thereto, and that the court, neither at Trial Term nor in its appellate branch, can usurp the functions of the jury. That conceded fact does not, however, answer the question we have now to consider. That question is, whether or not this court, upon undisputed facts, may not only reverse the Trial Term but may also direct the judgment which those facts require to be entered. Prior to the enactment of the Code of Procedure in 1848, the review on appeal in actions at law was by writ of error, and the reviewing court was only authorized to affirm or reverse the judgment brought before it for review by the writ and, in case of reversal, to grant a new trial. Until 1848 the rule in equity cases was different, but after the creation of the Supreme Court by the Constitution of 1846 (Art. 6, § 3 et seq ) the rule formerly applicable to actions at law was applied to
In 1912 the Legislature made an attempt to exercise this power to enlarge the jurisdiction of the Appellate Division by amending section 1317 of the Code of Civil Procedure so that it should read as follows: “Upon an appeal from a judgment or an order, the Appellate Division of the Supreme Court, or Appellate Term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing. When a trial has been before a jury, the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict. A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent, a sum of money or other relief, which was awarded to him by the judgment so affirmed. After hearing the appeal the court, must give judgment, without regard
So far as concerns actions at law which have been tried before a jury it must be conceded at the outset that, if it appears upon appeal, though the judgment appealed from was erroneous, that there remains an issue of fact to be determined before the proper judgment can be rendered, a new trial should be ordered to the end that the disputed question of fact may be passed upon and determined by a jury. So much is required by the constitutional provision preserving inviolate
Even before the amendment of the Oode in 1912 the Court of Appeals had repeatedly approved the action of the court of intermediate appeal in awarding final judgment upon reversal of a judgment brought before it on appeal, although of course such a practice cannot be approved even now in an action át law, if there be left any disputed facts. But when the facts are conceded or undisputed, whether the cause is one triable before a jury or the court without a jury, the appellate court has, ever since the adoption of the Oode, been authorized to render such
But, it is argued, a new trial should always be granted in a case like the present, because the plaintiff may then he able to offer other evidence, not produced upon the trial already had, which may establish her freedom from contributory negligence. That argument does not impress us favorably. Experience has shown that such a course does not always serve to promote the ends of justice. This court has, of late years, felt constrained in certain classes of cases wherein it has reversed a judgment because the verdict was against the evidence, or not supported by the evidence, to abstain from pointing out the particular defect or deficiency in the evidence, because it had so often found that upon a new trial witnesses had changed their testimony to fit the criticism of this court, or new witnesses had been produced to supply the deficiencies found in the evidence on the first trial. It may, we think, he taken to be axiomatic that each litigant is entitled to one fair trial of the controversy to which he is a party, but to no more than one. He should not be permitted to speculate upon the amount of evidence required to sustain his case, but should produce upon the trial all the evidence he has that will enable the court to render a just judgment. If he has produced less than all, he has no claim to a second chance to produce evidence which he might have produced in the first instance, but did not. If he discovers material evidence after the trial, of which he had no knowledge at the trial, he has ample remedy in a motion for a new trial upon newly discovered evidence, which will he entertained in a proper case, even after a judgment has been finally affirmed on appeal.
Of course there are cases not a few in which the appellate court can see that a new trial ought to be ordered, even though the case is one which should have been disposed of at the trial by a dismissal or a directed verdict, but that is a matter which the Code expressly confides to the judicial discretion of the Appellate Division.
We are, therefore, of the opinion that the Code (§ 1317) expressly authorizes this court, in an action at law which has
This conclusion was arrived at upon a consideration of the Seventh Amendment to the Constitution of the United States, reading as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
The decision turned upon the construction to be given to the second part of the amendment, as to the re-examination of the facts once tried by a jury, which, as was thought by a majority of the court, confined the practice in such cases to that which prevailed at common law when the Seventh Amendment was adopted, at which time, as it was said in the opinion, no such thing as an involuntary nonsuit or dismissal of a complaint was known, and upon reversal of a common-law judgment upon appeal, it was necessary that a new trial should be had before a jury, if for no other purpose than to have upon the record a formal verdict, even though rendered upon direction, as the basis for a judgment. The highly artificial rules of procedure at common law which prevailed in England when the Seventh Amendment was adopted have long since been abandoned in that country and in nearly all of the United States, in favor of a simpler and less technical procedure.' In our own State, while we have preserved the inviolability of the right of trial by jury, in this regard conforming to the first part of the Seventh Amendment to the Federal Constitution, we have not irrevocably bound ourselves to the ancient rules of procedure at common law by adopting any constitutional provision similar to that contained in the second half of the Seventh Amend
To return to the case at bar, we find upon the plaintiff’s own case, that as matter of law she has failed to show that she herself was free from contributory negligence, and for that reason that her complaint should have been dismissed at the trial. There is no suggestion that she did not produce on the trial all the available evidence to support her complaint, or that upon a new trial she would be able to produce new evidence to support the deficiency in her proofs. An appropriate situation is, therefore, presented for exercising the power conferred by section 1317 of the Code of Civil Procedure as we construe it. The judgment and order appealed from will, therefore, be reversed and the complaint dismissed, with costs in all courts to the defendant.
Ingraham, P. J., Clarke and Hotchkiss, JJ., concurred. Laughlin, J., dissented from dismissal of complaint.
Dissenting Opinion
I dissent from the dismissal of the complaint, but vote for a new trial for error in allowing the contradiction of the witness Smith as to the speed of the car, and on the ground that the verdict is against- the weight of the evidence.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.