
    Andrew Vollkommer, Jr., an Infant, by Andrew Vollkommer, Sr., his Guardian ad Litem, Respondent, v. Nassau Electric Railroad Company, Appellant.
    
      Negligence — when a new trial will he granted, for newly-discovered evidence, although it he cumulative.
    
    Where the evidence, in an action brought to recover damages for personal injuries resulting from the alleged negligence of an electric railroad company, is close and conflicting upon the main question as to which party was responsible for the accident, as a result of which the plaintiff, a boy, in pursuit of a foot ball, was inj ured either by reason of having himself run into, or of having been run down by, an electric car, the defendant, against whom- a verdict has been rendered, upon proof that it has, since the trial, discovered three important witnesses who will testify in support of its claim as to the manner in which the accident happened, should be granted a new trial upon terms, although the proposed new testimony may be cumulative.
    
      Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 14th day of May, 1897, upon the- verdict of a jury for $16,875 ; also from an order entered in said clerk’s office on the 14th day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of October, 1897, denying its motion for a new-trial made upon the ground of newly-discovered evidence.
    
      Henry Yonge [Clarence J. Shearn with him on the brief], for the appellant.
    
      Edward J. McCrossin, for the respondent.
   Per Curiam:

This action is to recover damages for personal injuries. The plaintiff is. a boy of some fourteen years of age. He and some other boys were playing football on the sidewalk on Marcy avenue, in the city of Brooklyn, on which street the defendant operates a trolley railroad. The ball was kicked into the carriageway of the avenue and rested on the defendant’s tracks. The plaintiff went in pursuit of the ball and was struck by the defendant’s car, the wheels of which passed over one of his legs, necessitating its amputation. The injury being very severe, not wholly unnaturally the verdict was very large. Marcy avenue at the point of the accident is straight, and there was no vehicle or other object present at the time to interfere with or obstruct an extended view of the defendant’s railroad in both directions. In fact, it is difficult to account for the occurrence of the accident at such a place and under such circumstances unless there was the grossest negligence on the- part of one party, if not on the part of both. The. plaintiff’s claim -was that when he stepped down from the curb into the carriageway and ran to obtain the ball no car was in sight, although a car could have been seen several hundred feet away; that while so running the car approached him from the rear and ran him down. The defendant’s claim was that the boy, while heedlessly pursuing the ball, ran into-the side of the car, slipped and fell. The issue between the parties-was thus extremely narrow. That issue has been resolved in favor of the plaintiff by the verdict of the jury, to whom the case was submitted in air entirely fair and unexceptionable charge by the trial judge. We are not prepared to say that there was any error committed at the trial which would authorize us to set aside the verdict.

But though the question of fact has been determined in favor of the plaintiff, it must be conceded that.the case on the evidence is-extremely close. Since the trial the defendants have secured three-witnesses, whose testimony will support their contention as to the manner in which the accident occurred. It was shown by the affidavits used on the motion'that t-lie evidence was discovered since the time of the trial, and that the defendant was guilty of no negligence-in failing to discover it at an earlier -time. 1 In some respects the-evidence may be criticized as cumulative, but this is not always an insuperable objection to granting a new trial.- (The Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54.) The general principle which should govern courts in disposing of applications of the character of the one now before us is well stated by - Judge Allen in Barrett v. The Third Avenue R. R. Co. (45 N. Y. 628): “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each ease. They are addressed to the-sound discretion, of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of -that end.”

In this case we can only say that, considering its particular circumstances, the closeness of the issue and. the uncertainty of correctness-in the determination of that issue, we are of opinion that justice-requires that the defendant should have an opportunity to again present the case, with the. new evidence that has- been brought to-light. This, however, is a favor, and should be granted only on terms sufficient to indemnify the plaintiff for all the expenses to whicli he has been put.

The order denying the defendant’s motion for a new trial on newly-discovered evidence should be reversed and a new trial granted, upon defendant’s paying to the plaintiff, within ten days, the trial fee and disbursements of the trial and one-half of the extra allowance granted by the court, in which case the appeal from the judgment is dismissed, without costs, but if the defendant fails to make such payment within the time aforesaid, then the judgment and orders appealed from should be affirmed, with costs.

All concurred, except Goodrich, P. J., who dissented from so much of the decision as affirms the judgment and orders in case the defendant fails to comply with the conditions aforesaid, he being of opinion that the damages are excessive.

Order denying motion for a new trial on newly-discovered evidence reversed and new trial granted upon appellant paying respondent, within ten days, the trial fee and disbursements of the trial and one-half of the extra allowance granted by the court, in which case the appeal from judgment is dismissed, without costs, and the judgment vacated. If defendant fails to make such payment within the time aforesaid, then judgment and orders appealed from affirmed, with costs.  