
    Joseph Ferrari, Respondent, v. Interurban Street Railway Company, Appellant.
    First Department,
    March 8, 1907.
    Trial — erroneous charge as to effect of attempt to bribe witness and failure to produce witnesses.
    When it is a question as to whether the defendant’s agent attempted to bribe or improperly influence a witness, it is error to instruct the jury that such an attempt, if found to have been made, affords a ‘'presumption” against the whole of the defendant's evidence. Such an act creates no presumption whatever but is simply a circumstance to be considered by the jury in determining the weight of the evidence.
    So, too, it is error to charge that the failure to call as a witness a person who was present at the alleged attempt at bribery creates a “ presumption ” that his testimony would have been unfavorable. No presumption exists a'gainst a party for failing to call a witness even though able to do so, but the jury may consider that if called the testimony of the absent witness would not have sustained the defendant’s contention.
    It is also error to sustain the plaintiff’s attorney in the statement that the failure ■ of the defendant to call as witnesses passengers on the car on which the plaintiff was injured raises a presumption against it.
    Such erroneous instructions require the reversal of a judgment for the plaintiff although the verdict be not against the weight of evidence if sharp questions of fact were presented and the plaintiff’s evidence was open to criticism.
    Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Supremo Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1906, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 23d day of April, 1906, denying the defendant’s znotion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Ferdinand E. M. Bullowa, for the respondent.
   Ingraham, J:

The only questions which I deezn at all matei'ial upon this appeal arise upon exceptions to the cliaz-ge of the learzzed trial judge.

Upon the trial a witness nazned Jzilia Collins was called for the plaintiff. She testified that ozze CuiTy, who was an inspector in the employ of the defendant, azzd whose duty it was to see witnesses and obtain from them a statement of what they could testify to in reference to accidents, came to the witness. and asked her if she would give hizn a stateme'nt, to which she replied that she would ; that she gave hizn a stateznent with which he was not satisfied, saying it was not good for the coznpany, and Wanted a longer statement ; that the. Avitness told the inspector that that was all she knew; that he then asked her if she would go for the coznpany and she said, no; that he said he would fix her up if the company should finally win; she said, no, no; she would not, no; that this conversation was three or four months after the accident.; that although the witness had been examined at a former trial prior to which she had stated these facts to the plaintiff’s counsel, she was not exaznined about thezn, Curry ivas called as a witness for the defendant azzd denied this whole convei’sa,tion. He stated that he called on the ivitness and asked her to give hizn a stateznent; that she gave him a statement, but that the rest of her testimony Avas untrue, and that he had no such convez'sation with her; that he saw her in company with a man named "Whelan, one of the company’s investigators; that he simply asked her for a stateznent, Avhich she gave hizn, and Avhich he tuzmed over to the attorneys for the defendant; that he did not ask her for another statement and neAmr went back to see her; that he did not say the stateznent Avas good, bad or indifferent for the coznpany, made' zzo coznznezzt at all, and.asked her no further, questions.

In,commenting upon this testimony the learned trial judge stated that Cun*y had testified, izi substance that after he had obtained a statement from, liis witness he said that “ it was not a sufficiently long statement to be of any use to the company, and that if she would make them a further and longer statement — I don’t understand that she claimed that he asked her to state any specific thing, or to deny that she had seen what she claimed to have seen — that the company would ‘fix it up if the company should finally win.’ Curry denies this, and it is for you to say, as I have already stated, first, whether he used this language or not, and secondly, if he did, whether there was in it by any fair inference, judging from the words themselves and the circumstances, any suggestion on his part of bribery, to induce her to withhold her testimony from the plaintiff or to give a different version of it for the defendant. It has been stated by the highest court in this State that where it appears that on one side there had been forgery or fraud in some material parts of the evidence, and they are discovered to be (the) contrivance of a party to the proceeding, it affords the presumption against the whole of the evidence on that side of the question, and has the ■effect of gaining a more ready admission to the evidence of the other party. It is not conclusive even when believed by the jury, because a party may think he has a bad case, when in fact he has a good one, but it tends to discredit his witnesses and to cast doubt upon his position.” To this charge the counsel for the defendant excepted.

This charge was taken in part from 1 Phillips on Evidence (C. & II. & Ed. Notes, 627), which was quoted by the Court of Appeals in the case referred to by the learned trial court (Nowack v. Met. St. R. Co., 166 N. Y. 433); but I think that this quotation without stating the qualification in the opinion, was quite misleading. What the Court of Appeals said was that “Evidence tending to show.that a party to an action tried to bribe a witness to give false testimony in his favor, although collateral to the issues, is competent as an admission by acts and conduct that his case is weak and his evidence dishonest. It is somewhat like an attempt by a prisoner to escape before trial, or to prove a false alibi, or by a merchant to make way with his books of account, except that it goes farther than some of these instances, for in addition to reflecting on the case, it reflects upon the evidence on that side of the controversy. ‘Where it appears •that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceeding, it affords a presumption against the whole of the evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party.’ (1 Phillips on Ev. [C. & H. Notes],, 627.) It is not conclusive, even when believed by the jury, because a party may think he has a bad case when in fact he has a good one, but it tends to discredit his witnesses and to cast doubt upon his position. It is for the consideration of the jury, after ample opportunity for explanation and denial, under proper instructions to prevent them from giving undue attention to the collateral matter to the detriment of the main issue.”

The guarded language here used shows, I think* the limitation as to the effect of such testimony. Assuming in this case that.the effect of this statement of the inspector for the defendant ivas an attempt to improperly influence the witness, the jury should have been carefully instructed that they should give to such a statement of purely collateral matter such" effect only as the law gives it. It is said in the Nowack Case [supra) that such evidence “is for the consideration of the jury, * * * under proper instructions to prevent them from giving undue attention to the collateral matter to the detriment of the main issue.” The word “presumption”, has a definite meaning, and such evidence never creates a presumption. It is simply a circumstance to be considered by the jury in determining the weight of the evidence^ .To “presume” is defined by Webster as “to assume” and also as “to take or suppose to be true or entitled to belief without examination or proof; ” and a “ presumption” is the act of presuming, but the Court of Appeals held the effect of such an attempt to be like an attempt of a prisoner' to escape before trial, orto prove a false alibi, or of a merchant to make way with his books of account, except that*, in addition, it reflects upon the evidence on that side of the controversy. I think the mere fact that a prisoner attempted, to escape before trial would not afford a presumption that he was guilty or .that that alone would not justify a jury in presuming his guilt. It.is only-a fact that-the jury is entitled to consider in weighing the evidence,. and which creates no presumption, either in favor of or against the prisoner.

The other question presented is in relation to the failure of the defendant to produce Whelan whom Curry, the defendant’s inspector, testified was present at his interview with the -witness Collins as a witness. Curry testified that he went to see her “in company with Mr. Whelan, one of our investigators.” In relation to the failure to call Whelan, counsel for the .defendant asked the court to charge that there was no evidence that the testimony of the absent investigator, who was with Curry, would be otherwise than cumulative evidence to that already given, and to that request the court seems to have acquiesced. Counsel for the defendant then asked the court to charge that the jury could draw no adverse inference against the defendant because defendant did not produce a witness whose evidence would merely be cumulative to that already given. This the court declined to do, saying: “ I will charge this, gentlemen, the rule is that where a party has within his control, or under his control, evidence which he might produce, and which is material to the issue, and he has neglected to do it, it raises an unfavorable presumption as to him.” To this charge the defendant excepted.

The learned trial court here used the same word “ presumption ” that had been used in relation to the act of the investigator to which attention has been called, but it is clear that there is no presumption against a party for failing to call a witness, even though he was able to call him and did not do so. The jury might consider that if called, the testimony of the absent witness would not sustain ihe defendant’s contention of the occurrence as to xvhich he could testify, but that created no presumption against the defendant.

It appears in the record that in summing up, counsel for the plaintiff commented upon the failure of counsel for the defendant to call Whelan as a witness, stating to the jury that it ivas a rule of law that he who fails to produce a witness who would know of the circumstances which are being testified to, the presumption is against him and the jury may fake that presumption and call for the application of the rule which shows a presumption against this defendant because of its failure to produce the "other investigator or notary public.- Counsel for the plaintiff also called for the application of that principle of law for the reason that the defendant failed to produce the passengers in the car. This claim by the plaintiff’s counsel as to the effect of failing to call these witnesses sustained by the court was not justified by the rule.

There was a sharp question of fact presented as to the liability of the defendant for this injury, and while the evidence would not justify the court in reversing the judgment upon the ground that the verdict was against the weight .of evidence, there are circumstances- connected with the plaintiff’s evidence which subjects it to criticism. It may well be that the jury considered the instructions , that they had received as justifying them in assuming that they could act upon the presumption that the court had told them affected the -defendant’s whole case and based their verdict upon such, presumption instead of a consideration of the testimony considered in the light of the incidents which had appeared upon the trial, and whicli they were only entitled to consider in determining the weight, to be given to the evidence. I think, therefore, that the instruction given to the jury, to which attention has been called, requires a reversal of the judgment.

The judgment and order appealed from are, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin and Lambert, JJ., concurred; Houghton, J., concurred on last ground.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed. 
      
      See C. & H. & Ed. Notes.— [Rep.
     