
    Joseph L. Carney, Respondent, v. The New York City Railway Company, Appellant. Louis C. Howard, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Street railways — Operation — Actions — Instructions — Assumptions as to facts.
    Where, upon appeal from a judgment in plaintiff’s favor rendered in an action for personal injuries resulting from a collision between a street railway car and an automobile operated by plaintiff, there is nothing in the record to indicate that there was any witness of the accident within the jurisdiction of the trial court or under defendant’s control at the time of the trial whom defendant’s servants knew or could call upon to testify, an instruction to the jury that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable to its case, duly excepted to, is error, seriously prejudicial to defendant, for which the judgment will be reversed.
    Dayton, J., dissented.
    Appeal by the defendant from two judgments entered in favor of the plaintiffs, respectively, in the Municipal Court of the city of New York, third district, borough of Manhattan.
    William E. Weaver, for appellant.
    Jacob M. Kram, for respondents.
   Gildersleeve, J.

These are appeals from two judgments, one for $121.'50 and the other for $436.50, entered in favor of the respective plaintiffs, after a trial before a justice and a jury. The first judgment represents a recovery for personal injuries, and the second judgment is for damage to property. Both causes of action are based upon a collision between one of defendant’s Fourteenth street crosstown cars and an automobile owned by plaintiff Howard and operated by plaintiff Carney. A number of witnesses were called for plaintiffs, but the defendant called none. The court charged the jury, with regard to the omission of defendant to call witnesses, as follows: “I charge you, gentlemen, that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable to its case.” To this charge defendant excepted. We.think the learned court fell into error which was seriously prejudicial to defendant. The inference which the jury presumably drew from this instruction was that defendant had evidence which it could produce, and failed to do so. There is nothing in the record to indicate that there was any witness of this accident within the jurisdiction of the court, or under defendant’s control, at the time of the trial, whom defendant’s servants knew or could call upon to testify. It is undoubtedly true that, where a litigant fails to produce a person known to be friendly to him, and who must have knowledge of the fact, and whose attendance can he obtained by the litigant, the jury may presume that the testimony of that person would not have been fayorable to the party; and the same presumption arises where the party fails to interrogate a friendly witness, produced by him at the trial, relative to a material issue in the case, which must be deemed to have been within the knowledge of the witness (Milliman v. Rochester R. Co., 3 App. Div. 109), unless, of course, such testimony would be merely cumulative. But we do not think this principle covers the instruction in' question.

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

Blanchard, J., concurs.

Dayton, J, (dissenting).

At the close of a careful and impartial charge, wherein the fact that defendant had offered no testimony was not commented upon, the defendant’s attorney said: “ I ask your Honor to charge the jury that no inference is to be drawn, except that the defendant does not consider that the plaintiff has made out a cause of action under the rules of law, and is resting on the case as it stands; and that no inference is to be drawn from the fact that they did not put on witnesses.” The court: “ I decline so to charge and I charge you, gentlemen, that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable to its case.” The defendant did not ask for the direction of a verdict, but went to the jury on plaintiffs’ case. The trial judge had said nothing in his charge to invite the request here specified. There was'an intimation in said request that defendant had witnesses but did not consider that plaintiff had made out a cause of action.

It seems to me, on the record, that said charge of the trial judge was proper.

I therefore cannot agree with my associates and vote for. affirmance of the judgments, with costs.

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