
    Charles Kruse, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Second Department,
    October 27, 1911.
    Railroad — negligence — injury to one attempting to steal ride — assault by brakeman — trial — over-zealousness of counsel — permitting defendant to call witness before close of plaintiff’s case — evidence — question asking whether witness had seen accident — character of plaintiff’s companion — charge.
    Action against a railroad to recover for personal injuries received-by one who fell from a freight train on which he was attempting to steal a ride. The plaintiff contended that when his head came above the top of a car a brakeman kicked him in the face, causing him to lose his hold. Evidence examined, and held, that a judgment entered on a verdict for the defendant should be affirmed.
    An appellate court cannot reverse a judgment entered upon the verdict of a jury simply because counsel had been over-zealous or over-insistent upon that which either may have considered to be the turning point of the issue. Between much zeal and prejudicial unfairness there is a very appreciable difference.
    A judgment for the defendant will not be reversed merely because after the plaintiff opened his case the trial court permitted the defendant to call a witness and ask him to identify his signature to a paper, where the paper was -not put in evidence and neither the jury nor the court knew anything of its contents.
    Nor" will such judgment be reversed because, said witness having been called, the court excluded a question by the plaintiff asking the witness if he had not told .the plaintiff’s counsel that he “had not seen the actual accident ’’-where the witness at that time had given no testimony as to the accident so that the question did not tend to contradict him.
    In such action it is not error to permit the defendant to ask the plaintiff on cross-examination whether he did not know that one who accompanied him at the time of the accident had been convicted of the crime of burglary, for it bore upon the plaintiff’s credibility as a witness if he knowingly consorted with one who had been convicted of a serious crime.
    Moreover, such question is permissible on cross-examination where the plaintiff himself had previously testified to the good character of his companion.
    Where there is no proof that there was more than one brakeman on the top of the train and the plaintiff testified that the brakeman who kicked him was fifteen cars back of the engine, it is not error for the court to charge- that the plaintiff cannot recover if the jury believes that the brakeman did not go further back than the fifth or sixth car, and that after signaling the engineer he went into the engine cab and remained there until the train reached a certain statipn. Subh charge amounts to no more‘than an instruction that if the jury found that the brakeman did not kick the plaintiff he could not recover.
    Appeal by the plaintiff, Charles Kruse, from a judgment of the. Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24th day of February, 1910, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 19th day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Thomas J. O’Neill [Leonard F. Fish with him on the brief], for the appellant;
    
      John F. Brennan,, for the respondent.
   Carr, J.:

The plaintiff appeals from a judgment dismissing his com-, plaint, entered upon the verdict of a jury in favor of the defendant. The plaintiff complains that, while he was stealing a ride •upon a freight tram of the defendant he was kicked from a freight car by a brakeman who was on top of a box car. The injuries resulting to the plaintiff were most serious in character. He was mutilated severely, losing an arm and sustaining other grievous physical injuries. He was a young married man of twenty-two years.

Practically the whole controversy at the trial centered about the question whether he had been kicked from the train by one of the defendant’s trainmen. The evidence on this question . was sharply conflicting. In addition to his own testimony the plaintiff produced a companion, named Carroll, who was likewise stealing a ride upon the train. Both of these witnesses swore that plaintiff boarded one of the box cars while it was moving and climbed up a stationary ladder at one end of the car, and that when his head came above the top of the car a brakeman came along from the rear of the train, on the tops of the box cars, and, after ‘'hollering ” at the plaintiff to get off, kicked the plaintiff in the face, thus dislodging him and causing him to lose his hold and to fall to the track below, under the wheels of the moving train. The train in question was quite long, having, as the witness Carroll testified, about thirty cars, or, as the defendant’s witnesses swore, about fifty cars. The occurrence in question is said to have taken place somewhere near the rear end of the train. The plaintiff gave no evidence to identify his assailant, except as to his stature and the fact that the brakeman who kicked him was coming forward from the rear end of the train. Carroll, however, identified the man as one who had stood upon the top of the train towards its rear end, and who had been engaged in giving signs for the movement of the train, and who while, so signaling was moving forward over the tops of the cars towards the engine,

The proofs given on the part of the plaintiff showed but one trainman on the top of the train. The defendant produced all its men who *were in charge of this train. According to their' testimony there was but one brakeman on its' top, namely, one Butler. All of these men denied that either of them had kicked anybody on or from the train. Butler located himself on the top of a car in the forward part of the train, some four or five cars back from the the engine. Some other witnesses were produced by the defendant who swore that they saw the train passing and that but one man was on top of it, a brakeman, and they did not see him kick anybody at the time the train was passing at the place where the plaintiff was injured.'

The case was tried with spirit by counsel of no little experience and resourcefulness. Whatever criticism may suggest itself to the mind of this court as to the conduct of the trial, it cannot be said that any "possible point of attack or defense was overlooked by either counsel. Considering the conflict of testimony, and the sharpness with which the issués were presented to the jury, there would be no justification for any interference by this court with the verdict of the jury on the questions .of fact. The learned counsel for the plaintiff insists most earnestly that his client did not in fact have that fairness of trial which is the right of every litigant, and he specifies a number of particular instances in which, as he claims, this unfairness was shown either by misconduct on the part of. his adversary or by the rulings of the trial court. An examination of the record shows that neithei counsel was lacking in zeal. This quality, while necessary to every counsel, sometimes when present in over-abundance tends to convert a court room into a cockpit, and is not at all helpful to that atmosphere of cahn and of patient effort to sift out the truth which should mark every judicial inquiry. Neither the court nor the jury is helped at all by over-contentiousness or false emphasis. While everybody knows this well, not everybody keeps it in mind, and too often trials of fact tend to become mere struggles of voice and mind, aimed towards personal victory rather than to the ascertainment of truth for the purposes of justice between man and man. Yet an appellate court cannot reverse a judgment entered upon a verdict of a jury simply because counsel- have been over-zealous Or over-insistent upon that which either may have considered as the turning point of the issue. This is a workaday world, and the rule'eof perfection controls no more in a court room than in the outer world. Between much zeal and prejudicial unfairness there is very appreciable difference.

Let us see where and how the plaintiff has been aggrieved improperly if at all on -the trial of the issues. The first ground of grievance is that the trial court permitted the defendant just after the" plaintiff- had opened his case to call to the witness stand one Eoddy and to ask him to identify his signature to a paper. This of course was out of • regular order, but wherein it was prejudicial does not appear. The paper itself, neither then nor thereafter, was offered in evidence, and neither the jury nor this court knows anything about its contents. Next in order is the grievance of' the plaintiff that when his counsel thereupon asked this witness whether he, the witness," had not.told the plaintiff’s counsel that he “did not see the actual happening of this accident,” the question was excluded ■ upon objection of the defendant. This exclusion was proper enough at that time; the witness had given no testimony whatever as to the accident, and the question did not tend to any contradiction of him in any way. At most, nothing but a signature was identified.' The plaintiff could, have called Eoddy as his own witness at any time he chose, to prove any fact which was material to the issue. It turned out, however, that he was not called again by either party It is urged, however, that the defendant called Eoddy at this stage of the case as a mere device in order that the jury might learn that it had a signed statement from Eoddy, who was one of the plaintiff’s companions in the ride-stealing enterprise, and might then infer that this signed statement was in favor of the defendant, unless the plaintiff called Eoddy as his own witness. While this may not have been the defendant’s purpose, yet if it was, there was nothing to prevent the plaintiff from calling Eoddy thereafter as his own witness and showing that Eoddy kneyz nothing about the matter. So far as the record goes, there is nothing in this incident which indicates reversible error.

Much complaint is made. that the defendant was permitted to ask the plaintiff on cross-examination whether he did not' know whether his then companion, Eoddy, had not been convicted of the crime of burglary. Whether Eoddy had been convicted of burglary had no immediate bearing upon the fact of the alleged assault. It had, however, a bearing upon the question of the plaintiff’s credibility as a witness, if he knowingly consorted with one who had been convicted of a serious crime. It appeared from the plaintiff’s proofs that he and a number-of young men from the east side of New York city had banded together to journey from the city to the upper central portion of the State, presumably looking for work, but obtaining their transportation by stealing rides on freight trains. The Legislature has made this method of locomotion a criminal offense. On his own initiative the plaintiff testified as to the good character of his companions generally. So on his cross-examination it was not error to permit him to be asked whether he knew that one of them had been convicted theretofore of the crime of burglary. In any event he denied such knowledge on his part, and no proof was offered to contradict him, thereon, and we cannot speculate whether this incident affected the verdict of the jury, improperly against him. Nor do we think that there is any substantial merit in the plaintiff’s exception to the court’s charge, upon the request of the defendant, which arose as follows: The defendant asked the court to charge “that if the jury believes that the brakeman who signalled did not go back of the fifth or sixth car and stayed there and signalled to the engineer and then when this train started up went immediately forward into the cab of the engine and remained there until the train got to Castleton, that in that event, if they so find, the plaintiff cannot recover.” The court so charged, and the plaintiff excepted. No error was done in so charging, for there was no proof in' the case that there was at any time more than one brakeman on- the top of the train. .If any one kicked the plaintiff off the train it was according to the plaintiff’s proofs a brakeman who was on the top of the train about fifteen cars back of the engine .and who had given signals to thó engineer for the moving of the train. According to the defendant’s proofs, there was a brakeman — Butler — on top of the train, but who was stationed four" or five cars back of .the engine, and who, after signaling, went forward to the engine, and who' did not kick the plaintiff. The request of the defendant was but another form of instructing the jury that if they found that Butler had- not kicked' the plaintiff he could not recover a verdict. It is now insisted that as the proofs showed that there were several other train hands on the train, the jury might have found that some one of these men other than Butler had kicked, the plaintiff. To llave so. found would have been mere speculation, as the proofs were quite conclusive that no train hand other than Butler was on top of the cars at the time of the occurrence.

' We have examined with care the remaining grounds advanced by the plaintiff as reasons whythe judgment should be reversed, but we are unable to find reversible error therein. The dreadful injuries suffered by the plaintiff require a patient examination of his appeal from the verdict of a jury, but they should not justify any decision on the part of this, court which rests upon a basis purely sympathetic.

The judgment and order denying the motion for a new trial should be affirmed, with costs. ,

Thomas and Woodward, JJ., concurred; Jenks, B. J., and Hirschberg, J., concurred in result.

Judgment and order unanimously affirmed, with costs. ;  