
    Ellis R. Williams, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      When the third verdict of a jury in favor of a plaintiff on the same evidence will he set aside.
    
    Upon the retrial of an action which had been taken to the Court of Appeals, the plaintiff, in order to bring himself within the decision announced by that court, altered his testimony respecting a material and vital point of the case. Upon a second review of the case the Court of Appeals held that it was for the jury to determine which of the two inconsistent statements they would believe. After this decision had been rendered, the case was again tried, on which trial a verdict was rendered in favor of the plaintiff, which verdict was set aside by the Appellate Division. A new trial was then had upon which the evidence given on the former trial was read to the jury from the printed record, with the result that the plaintiff again obtained a verdict which was set aside by the Appellate Division for the same reason as before. A third trial was had, upon which trial recourse was again had to the printed record for all the evidence save that of the plaintiff himself, who testified orally in his own behalf. The case was submitted to the jury, who found in favor of the plaintiff.
    Upon an appeal from the judgment entered upon the verdict, and from an order denying the defendant’s motion for a new trial made upon the minutes, the court
    
      
      Held, that as the plaintiff’s testimony was not only uncorroborated but was contradicted by his former testimony and by:all the facts and circumstances of the case, it was not sufficient to sustain a verdict, iñ his favor;.
    "That the fact that three juries had found in favor of the plaintiff did not require the Appellate Division to acquiesce in their disposition of the case, especially in view of the practice adopted at the last two trials of reading the testimony from the printed record.
    Spring, J., dissented.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county •of Oneida on the 20th clay of March, 1901, upon the verdict of a jury.for $4,900, and also from an order entered in said clerk’s office •on the 20th day of March, 1901, denying the defendant’s motion íor a new trial made upon the minutes.
    
      William Kernan, for the appellant.
    
      P. C. J. De Angelis, for the respondent.
   Adams, P. J.:

This is an action to recover damages for personal injuries, and it is the third time this court has been called upon to review a judgment therein which was favorable to the plaintiff.

Upon the first hearing we held, in an opinion- which recited the facts of the case at considerable length, that the verdict of the jury upon which the judgment was based was against the preponderance of evidence, and for that reason a new trial was granted, (39 App. Div. 647.)

Upon a retrial the evidence given on the former trial was'read to the jury from the printed record, with the result that the plaintiff again obtained a verdict, which was set aside by this court, for. the same reason as before. (53 App. Div. 648.)

Upon the last trial recourse was again had to the-printed record for all the evidence, save that of the plaintiff himself, who testified orally in his own behalf. The case was again submitted to the jury with the same result as upon the former trials; whereupon a motion Was made for a new trial before the trial court, which was denied; and from the order denying the same, as well as from the judgment subsequently entered, this appeal is brought.

We seem to have great difficulty in making the views of this court understood concerning this most remarkable case, although, we supposed they had been expressed quite emphatically and unequivocally..

Upon' one of the many trials had in the action, other than those above referred to (for the case has been six. times tried), the plaintiff found it necessary, in order- to bring himself within the decision of the Court of Appeals (116 N. Y. 628), to alter his testimony-respecting a material and vital point of his case to which he had committed himself upon the preceding trial. This contradiction of himself could only be explained upon the theory that upon one occasion or the other he had sworn falsely ; but notwithstanding; this fact, it was held by the Court of Appeals, upon a second review by that court (155 N. Y. 158), that it remained for the jury to determine which of these two inconsistent statements they would believe. Upon each of the three trials which have since taken place the jury have said that they preferred to believe the version of the situation at the time of the accident which the plaintiff adopted after being advised by an adjudication of the court of last resort that such a version was absolutely essential to a recovery and did his evidence in this regard possess any considerable probartive force we should feel bound to acquiesce in the finding of the jury, however repugnant it might be to our sense of justice. But as a matter of fact, we have said, and again we repeat it, that the plaintiff’s testimony is not only uncorroborated, but it is contradicted by his former testimony and by all the facts and circumstances of the case, as we endeavored to make clear in a former decision of this.court (39 App. Div. 647). Being thus discredited, his own uncorroborated -testimony is insufficient to sustain a verdict in his favor(.Fealey v. Bull, 163 N. Y. 397,403), and for that reason, "as this-court has already twice- declared, it should be set aside.

For the adoption and assertion of this view this court assumes the entire responsibility, realizing as it does that its error, if any there-be, can be corrected upon appeal; but until thus corrected, it insists that its decision should be respected by the trial court.

In saying this we are not unmindful that much consideration was, given by the learned trial justice, before whom the case was last tried, to the circumstance that three juries had reached a result favorable to the plaintiff upon evidence which was virtually the same upon each trial. It was apparently for this reason alone that he denied the defendant’s motion, and resort is now had to the rule thus invoked by the trial court as furnishing a sufficient reason why the judgment and order appealed from should be affirmed.

Ordinarily a court of review might feel constrained to. acquiesce in the determination of a jury thrice expressed (Dorwin v. Westbrook, 11 App. Div. 394; Nutting v. Kings Co. El. R. Co., 21 id. 72); but there is no rule of which we áre aware absolutely requiring such acquiescence. Indeed, the law has clothed appellate tribunals with almost unlimited power of review, when satisfied that' verdicts of juries are the result of misconception, prejudice or partiality; and this power is one. which should be freely and fearlessly exercised. (Nutting v. Kings Co. El. R. Co., 91 Hun, 252.)

This case, however, is by no means an ordinary one. On the contrary, in many of its features it is most extraordinary; in none more so, perhaps, than in the fact that upon the "second trial the evidence, as had already been pointed out, was read entirely from the printed record, while upon the last trial, with the exception of the plaintiff’s own testimony, the same course was pursued. In these circumstances it may very properly be asked whether either of these trials amounted to more than a mere matter of form?

Certainly, as was clearly pointed out by Laughlin, J., when the case was last before us (53 App. Div. 648), the usual considerations which lead an appellate court to hesitate before setting aside a verdict as against the weight of evidence, are entirely wanting where, by reason of the procedure adopted at the trial, it cannot be said that the jury and trial judge were in any better position than the court of review- to judge of the credibility of witnesses, by reason of the opportunity which is afforded them to observe their demeanor and appearance while undergoing examination.

It is cause for regret that another trial of this case is rendered necessary, but we do not see how it can be avoided without shirking the responsibility which, as we understand it, the law imposes upon this court.

Judgment and order reversed and new trial ordered, with costs to, appellant to abide event.

All concurred, except Spring, J., dissenting on memorandum of Merwin, J., delivered at Trial Term.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.

The following is the memorandum delivered by Merwin, J., at the Trial Term:

Merwin, J.:

Under the decision of the Court of Appeals (155 N. Y. 158) a nonsuit in this case cannot legally be granted. That being so, it necessarily follows that at some time the verdict of á jury must be final although the trial court may think that the verdict is against the weight of the evidence.

Since the decision above referred tó, there have been three trials on substantially the same evidence, and each time the verdict has been the same way. I see no good reason for believing that the result will be different if another trial is ordered. The rule used to be that after two trials finality would be recognized. How three are sometimes required, but I am cited to no case where more than three were deemed to be necessary or proper.  