
    James C. B. Fisher, Respondent, v. Central Vermont Railway Company, Appellant.
    Third Department,
    March 13, 1907.
    Negligence — injury at railroad crossing — inconsistencies:, between-testimony on first and second trial.-
    When. a. judgment in favor of the -plaintiff, who was injured while - crossing-'a railroad track, was reversed' upon the -ground that on his own testimony he ■was guilty of contributory-negligence in failing to look, and:-on'tkV new trial • he directly contradicts-his former testimony on that point without- explaining-the contradiction and without corroboration, there is,such, an, irreconcilable ' variance between the two statements that the plaintiff fails to sustain the burden of proof. ■
    Chester, J., dissented.
    ■Appeal, by the defendant, the Central Vermont Railway Company, .from a judgment of the -Supreme Court in favor off,th.e-plaiñ* • tiff;-; entered in the office: offthe.-clerk of the.: county - of3 Clinton;- on* thelst day;of-May, 1906,mpon- the verdict- off a- jury- for- |¡7;;50Q|., and also from an order entered in said clerk’s office on the 24th day of April; 1906, denying the defendant’s motion for a new. trial made upon the minutes.
    
      Shedden & Vert [L. L. Shedden of counsel], for the appellant.
    
      Gaylord T. Ames [ John H. Booth óf counsel], for the respondent.
   Cochrane, J.:

Plaintiff has recovered a second verdict for personal injuries due to the defendant’s alleged negligence. The judgment entered on the first verdict was reversed, the opinion of the court being reported in 109 Appellate Division, 449. The facts are there stated in detail. Repetition thereof is here unnecessary.

At the first trial plaintiff testified that as he crossed track 2 in front of the mail car he looked north and was just turning to look south as he stepped in front of the engine on track 3 and was struck by said engine. He had ample opportunity to look north when he was at the end of the mail car, and it was held on the former appeal that he was negligent in not looking south until just- at the instant when he was struck by the engine bn track 8.

At the last trial plaintiff testified in effect that he began looking south when between the rails of track 2 and continued looking south until the collision. 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. Ho satisfactory explanation of this contradiction is proffered, and there is no corroboration on this crucial branch of the case. It is, of course, possible that plaintiff was mistaken in his first testimony. The natural inference, however, is that such testimony was probably correct. His recollection was then certainly as.good as subsequently; and the first narrative would naturally be more artless and spontaneous, given as it was before it-was subjected to the test of criticism and before its fatal effect on his chances of recovery had been revealed on the former appeal.

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 casé. 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 passing on this important question the jury had before them absolutely nothing save two contradictory statements of the plaintiff each sworn to under similar circumstances, except that the last-statement which was accepted by the jury was made under circumstances tending to throw doubt and suspicion thereon. Who among us is gifted with such subtle discernment as to be able to say that the last statement rather than the first comports with the .true version of the occurrence!

These two conflicting statements should be clearly placed in juxtaposition before the minds of a jury, and their attention should pointedly be called to their apparent irreconcilability and to the circumstances under which they were respectively given and in such a manner that the question thus presented is not minimized or obscured by other questions in the case, so that the verdict of the jury if in plaintiff’s -favor may clearly and beyond peradventure carry with it the expression of their belief that the latest statement-of the plaintiff is-the trné one, notwithstanding the apparent probabilities to the contrary. The defendant’s motion for a new trial should have been granted.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide-the event.

-Kellogg and Sewell, JJ., concurred; Smith, P. J,, concurred in result; Chester, J., dissented.'

Judgment and ordér reversed and new trial granted, with costs to appellant to abide event:  