
    Hattie P. Beers, as Sole Administratrix, etc., of Frank Beers, Deceased, Appellant, v. The West Side Railroad Company, Respondent.
    
      Negligence — injury to a passenger from the derailment of a street car—proof that the noise and motion of the car were unusual is competent to show notice to the conductor and motorman — it is not incompetent as calling for a conclusion — delay in the discovery of newly-discovered evidence.
    
    In an .action brought to recover damages resulting from the death of the plain- ' tiff’s intestate, it appeared that the defendant operated a street railway which extended over, a bridge 800 feet long, the southerly approach to which was by a sharp incline for about 80 feet; that on the day in question the intestate boarded one of the defendant’s street cars and, by reason of its crowded condition, stood on the rear platform with his back to the tailboard; that as the car started down the incline leading to the bridge, the forward
    
      wheels of the rear truck of the car left the rails and continued to remain off the rails until the car, with increasing speed, arrived at a point near the middle of the bridge, when the wheels struck a projecting plank and the rear of the car was hurled to one side, throwing the plaintiff’s intestate from the platform against the framework of the bridge and inflicting injuries from which he subsequently died.
    The theory of the trial was that the defendant was not liable unless the motorman or conductor knew, or ought to have known, that the wheels were off the track, and thus was negligent in not stopping the car:
    
      Held, that it was improper for the court to refuse to allow the plaintiff to show, by a witness accustomed to ride upon street cars and over the bridge in question, and who was familiar with the noise and motion which they ordinarily made in passing over the scene of the accident, whether the noise and motion of the car as it approached and ran upon the bridge on the occasion in question was usual or unusual;
    That such evidence was competent and material as bearing upon the question as to whether the conductor or motorman should have, known that something was wrong in the running of the car;
    That the .evidence was not objectionable as calling for the conclusion or opinion of the witness; that it called for a fact based upon the observation of the witness and came within the rule which permits a witness to state the identity of a person, the size and weight of an object, the time when an occurrence took place, and the distance of the witness when he saw what took place.
    When the mere fact that newly-discovered evidence is not found until after a. third trial is not a sufficient reason for refusing to grant a motion for a new trial based thereon, considered.
    Appeal by the plaintiff, Hattie P. Beers, as sole administratrix, etc., of Frank Beers, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 8th day of June, 1904, upon the verdict of a jury, also from an order entered in said clerk’s office on the 8th day of June, 1904, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s.office on said 8th day of June, 1904, denying the plaintiff’s motion for a new trial upon the ground of newly-discovered evidence.
    
      Edward C. Herendeen, for the appellant.
    
      Frederick Collin, for the respondent.
   Houghton, J.:

The defendant operates a street railway in the city of Elmira, and on the 30th day of May, 1900, the plaintiff’s intestate was a passenger upon one of its cars which was passing over a bridge spanning the Chemung' river. , The bridge is about 800 feet long, upon . which are laid two tracks. The southerly approach to the bridge is by a sharp incline for about 80 feet, ' The car boarded by plaintiffs intestate was crowded and he was standing on the rear platform with his back to the tailboard.

The evidence of. the plaintiff showed, much of ■which was uncontradicted by the defendant, that starting with the incline the forward wheels of the hind truck of the car were off the rails and continued • so to remain until the car, with increasing speed, arrived at a point near the middle of the bridge, when the wheels struck a projecting plank and the rear of-the car was hurled to one side, throwing .the plaintiff’s intestate from the platform against the framework of the, bridge and inflicting injuries from which he subsequently died.

The theory' of the trial was that the defendant was not. liable unless the motorman or conductor knew, or ought to have known, that the wheels were off the track, and thus- were negligent in not stopping the car.

■ In the course of the trial the plaintiff sought to prove by a witness accustomed to ride upon street cars and over the bridge in question* and who was familiar with the noise and motion which they made in their ordinary passing over the scene of the accident, whether the noise and motion of the car as it 'approached and ran upon the bridge was ¡usual or untisual. Upon the- defendant’s objection the evidence was-excluded, and to the ruling the plaintiff duly excepted. The plaintiff attempted to make the, same proof by other witnesses but their answers were excluded.

The defendant’s motorman and conductor were sworn in its. behalf, and- against pjaintiff’s objection and exception they were permitted to testify that they noticed no unusual sound or motion of the car.. \ .

. It is manifest that both these rulings cannot be right. If it was proper for the defendant to show, that there was no unusual noise or motion which could attract the attention of the motorman and. conductor to the fact that something was wrong in the running of the car, and, therefore, excuse them for failing to stop it, it, was certainly competent for the plaintiff to show that there were such unusual noises and motion that the attention of the' motorman and conductor should have been attracted to it, and, therefore, that they should have known that something was wrong and brought' the ■car to a stop. • .

We are of the' opinion that the evidence was,’competent, and that ■the court erred in refusing to permit the plaintiff to show that the. -noise and motion of the car as it approached and ran upon the .bridge were not of the'usual kind, and that this could be shown' by .any witness accustomed to ride upon the cars over the place in question" and familiar with the noise and motion made by cars in their ordinary running upon the track. Under the theory upon which -the case was tried, this was material as bearing upon the question as -to whether or not the inotorman or conductor ought to have known that something was wrong in the running of thé car. A noise out of the ordinary and a motion not customary would- indicate, especially to an expert, that something was wrong, and hence "that they must make investigation -or stop the car entirely. W itnesses had •described the bumping and grating noises which they observed, but if in addition the jury had been possessed of the. fact that these noises were not the usual ones they might have come to the coriclu■sion that they were of such a character that the motorman arid con-ductor ought to have known that the car was off the track or that ■something was out of place which' was likely to produce an accident.

The evidence cannot be condemned because it called for the conclusión or opinion of the witness. ■ It is rather a fact based on the ■observation-of the witness. It comes within the rule which permits a witness to state -the identity of a person, the size and weight ■of an object, the time when an occurrence took' place, and the dis- ' "tanbe of the witness when he saw what took place. Evidence of this' •character is admitted daily upon trials and is never questioned. ■-(1 Greenl. Ev. [15th ed.] §:440; Harpending v. Shoemaker, 37 Barb. 270.) So an ordinary witness may say whether or not an individual was intoxicated (People v. Eastwood, 14 N. Y. 562) or whether a person appeared friendly, or endeavoring to help another, (Blake v. People, 73 id. 587.) These and like conclusions are per mitted, for they require no knowledge of science of "any special training, but are the results’ of. observation merely. If the carriage of a person on a particular occasion was the subject of pertineht inquiry, could not a witness, familiar with his manner of walking, usav that lie walked straight and erect as he usually did? Such’ an inquiry' would be one calling for a fact resulting from the witness’" - observation, to be sure, but, nevertheless,’permissible for the consideration of. the jtiry. In Carpenter v. Central Park, North & East River R. R. Co. (11 Abb. Pr. [N. S.] 416) it’was expressly-held that a witness who =had"’’observed the manner of construction of street" railroad's -might testify that the road in question was not constructed according to the' Usual" method, because the inquiry was-not-. one calling for special knowledge of the skill of" an expert. Every employer 'sued by his employee "because of injuries resulting-from alleged -defects in ap.pliancés "furnished for work, attempts to-justify himself by showing, at least, that he has furnished the usual appliance, and, unless" it is one calling fat special expert knowledge,, any -witness who "is familiar "with the same class of appliances used,, in. Other establishments is ..permitted to prove the fact.

■ We. are" not disposed- to extend the rule with respect to Opinions. Of witnesses, or to enlarge the salutary one restricting'witn'esses from.' stating their conclusions ; but'we can see no reason why the evidence-sought to be introducéd by the plaintiff ivas not both pertinent and competent. '

• In addition-, we are of the. opinion that the Special Térm .should have granted the plaintiff’s motion" for a new trial upon nexvly-discovered evidence:' This evidence consisted of that of two witnesses-who were riding bicycles directly behind the car ;at the time of the-accident, and "Observed that, the wheels were Off the:track; and in affidavits they say they will testify thát they saw the conductor of the car) while standing "upon the running board, stoop down and look at the'wheels in such manner that he must have seen .that they , were off the track' and" upon the planks of the bridge. It" is plain! that this is vital evidence, for, if it is true, the ■ conductor actually knew that the wheels were no,t" running properly and took -the: chance "of their adjusting themselves father than to stop the- car.

Criticism is made of this evidence that it comes very late, the-judgment appealed from being the result of á third trial before a. jury:; and'also that it is contrary to the testimony "of. other witnesses, sworn'upon the trial, who testified that the conductor was. upon the-running board collecting fares -during all the time that the car was- ‘ running on -the bridge. The testimony" is not necessarily inconsistent in this respect, for the collecting Of fares may have been the con doctor's particular occupation and the looking under the car only an incidental act on his part. It is true that the discovery of this-evidence comes at a late period in the'investigation of the facts of' the case; but the affidavits disclose every effort on the part of the-plaintiff and her attorneys to ascertain such witnesses as could throw light upon the situation, and their failure to discover these particular witnesses until after the last trial had taken place is fully explained and excused. From the facts no suspicion can be cast upon the plaintiff and her attorneys that the evidence is manufactured or that they could have found the witnesses sooner by any diligence on their part.

We think the learned Special Term failed to exercise proper discretion in refusing to grant the motion.

The judgment and orders should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred ; Chase, J., in result.'

Judgment and orders reversed and new trial granted, with costs on appeal from judgment only to appellant to abide event.  