
    FICK v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    February 11, 1898.)
    Carriers—Injuries to Passenger—Weight of Evidence.
    In an action for personal injuries the material question was whether the street car which caused the injury was in motion when plaintiff attempted to alight. Plaintiff, a boy 9 years of age, and his younger brother, testified that he directed the driver to stop the ear, which was done, but it started again before he got off, thereby throwing him down, and causing the injury. The accident happened two yea,\s before the trial. Shortly after the accident, In a prosecution against the driver of the car, plaintiff, although represented by counsel, did not testify that he instructed the driver to stop. Other disinterested witnesses testified positively that plaintiff jumped off while the car was in motion, and one witness testified that plaintiff stated, immediately after the accident, that he got off while the car was in motion. Held, that a verdict for plaintiff was so much against the weight of the evidence as to warrant a new trial.
    Appeal from trial term.
    Action by Martin Fick, an infant, by Mary Fick, Ms guardian ad litem, against the Metropolitan Street-Railway Company, to recover for personal injuries received through defendant’s negligence.. From a. judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    Charles F. Brown, for appellant.
    Jacob M. Guedalia, for respondent.
   INGRAHAM, J.

This action was brought to recover for injuries sustained by the plaintiff, an infant of the age of 9 years and 6 months, being run over by one of the defendant’s cars. The plaintiff and his brother, about 8 years of age, were passengers upon one of the defendant’s cars. He went out upon the front platform of the car, and, while attempting to alight, was thrown under, the car, and received injuries which resulted in the amputation of his right leg. The jury found a verdict for the plaintiff, and the only ground upon which the defendant seeks to reverse tMs verdict is that it is against the weight •of evidence.

The plaintiff testified that he got on the car at TMrty-Fourth street and Lexington avenue wMlethe car was going west; that he did not get a seat until the car passed Sixth avenue; that, when the car got to Tenth avenue, he went to the front platform, and told the driver to stop; that his brother Henry was with him; that the driver stopped the car; that he (the plaintiff) then put his foot on the step, and started to get off; that the car started in motion again, and he was thrown off, was thrown upon his face, and the wheel passed over his leg; that, when he asked the driver to stop the car, it came to a full stop; that the car started before he got off, and threw him down. Henry Fick, the plaintiff’s brother, who was with Mm on the car, testified that the car came to a full stop, and that he (the witness) then got off. Another witness called for the plaintiff testified that, when he first saw the car, it had stopped, and that it was about 3 yards from the plaintiff. The defendant called as a witness a physician in the employ of the defendant corporation, and who was in the hospital to wMch the plaintiff was taken the day after the accident. He testified that he spoke to the plaintiff then; that the plaintiff told him that he was getting off the front platform with his brother Henry; that he got off while the horses were going. TMs witness seems to have interviewed the plaintiff without any authority from any one, but simply in the interest of the railroad company. The accident happened on Decoration Day, May 30, 1895. It also appeared that the driver was arrested. His examination upon the criminal charge was before the police magistrate on the 28th day of June, 1895, and the plaintiff was examined before the magistrate. The plaintiff there testified that he was on the car with his brother; that he (the brother) told the driver to stop the car; that the driver stopped, and his brother got off the car; that the car commenced to go again, when the plaintiff was hurt; that the car was turning the curve when the plaintiff went off; and that the car was going at the time that he (the plaintiff) fell. The defendant also called a witness who testified that he was in the car when the plaintiff, with his brother, got off; that the car was proceeding towards Tenth avenue, and, just before arriving there, the car stopped, and almost all the passengers left the car; that, after the bell rang for the car to start, the driver shut the door, and that the plaintiff jumped up, went to the front door, and out upon the front platform, and stepped off the car; that then came the crash or jolt of the car, and the witness jumped out; that the plaintiff left his seat, and stepped off the car, after the car had started. He swore that, before the plaintiff attempted to get off, the car had gone at least 20 feet from the point at which it had stopped. The witness positively contradicts the statement of the plaintiff that the car came to a stop while the plaintiff was on the platform, and then started again. The defendant also called a witness who was sitting in a house, No. 501 West Thirty-Fourth street, at the time of the accident, looking out of the window. This witness testified that the accident occurred nearly in front of the witness; that he saw the boy standing on the step, pretty near half way down the hill; that he rode on the step a few feet when he jumped off, and walked backward a few steps, when he fell, and the car passed over him; that he got off the car with his back to the horses, and that the car was going at the time; that the car did not stop before he got off. This witness appears to have been entirely disinterested, and in a position from which he could see the accident. Another witness, who was a passenger on the car, and who got off just before the accident, testified that when she got off the car she walked towards the sidewalk; that when she got there she heard a scream, and that she then turned around, and saw the plaintiff lying upon the street 2 or 3 feet behind the car; that the car had gone about 25 feet. The conductor of the car following the car in question testified that his car closely followed the car on which the plaintiff was a passenger; that just before getting to Tenth avenue the witness’ car had to stop because the car in front had stopped to allow the passengers to alight; that he saw the plaintiff attempt to get off the car; that he got off the car while it was in motion, and that, as he was trying to get his footing, he fell under the car; that the car ahead was close to the witness, the team of the witness’ car being right up to the dashboard of the car ahead of him; that the witness’ car was an open car; that the plaintiff jumped from the car, holding onto the rail upon the body of the car. The conductor of the car upon which the accident happened testified that as he was going west through Thirty-Fourth street, he stopped at the top of the hill to let some passengers off; that he signaled the driver to go ahead, and that the car had gone about four houses from the top of the hill when the witness felt a jolt, looked on the side of the car, and saw the plaintiff lying near the back wheel, and that the car then came to a stop; that the car did not stop at all from the time it stopped at the top of the hill until after the boy had been run over. The driver also testified that neither of the boys asked him to stop, nor did he stop the car; that the boys came upon the platform, and, after riding a few feet, he heard the plaintiff scream, and noticed him dragging by the body rail of the car; that, when he screamed, the driver put on the brake as soon as possible, but that before he could stop the car the plaintiff let go and fell under the car.

The plaintiff’s case, therefore, depends entirely upon the testimony of these two boys, both of whom made statements, immediately after the accident, which, if not absolutely contradicting their testimony upon the stand, were at least inconsistent with it. The other witnesses to the occurrence, several of whom are apparently disinterested, testified positively that the car did not stop, but that the plaintiff jumped off while the car was in motion, with his back to the horses, holding onto the rail upon the body of the car, and that the momentum caused by the motion of the car, he having his back to the horses, caused him to fall. If this is true, it is quite clear that there was no negligence on the part of the defendant that caused the injury, but that it."was solely caused by the act of the plaintiff in jumping from the car while it was in motion, with his face in the contrary direction from that in which the car was going, and which would necessarily result in his being thrown to the ground. The explicit statement, made by the plaintiff and his brother, that the driver was asked to stop, and did stop, and then started on again, when no such statement was made to the police magistrate at the time that the driver was before him, charged with negligence that resulted in the injury, when such a statement would have been most material in determining whether or not the driver was guilty, is certainly most suspicious; and it can hardly be conceived that these children would have recollected this occurrence several years after the accident, when called upon to testify upon the trial of the action, and not have remembered it within a month of the accident, when called upon to testify before the police magistrate. It is hardly conceivable that, if the present statement is true, they should have made one inconsistent with it, and which left out the one fact that would justify a recovery in this case. The plaintiff and his brother were largely interested in the result of this trial. It is quite apparent that, for the plaintiff to succeed, it was necessary for him to swear that the car had stopped before he attempted to alight. He was a boy, under 10 years of age at the time of the accident, and something over 12 years of age at the time of the trial. The liability of a child of this age to be coached for his examination in court, to have the suggestion made to him that he should- remember that the car stopped before he attempted to alight, and the inability of such a child to realize the obligation of an oath, or the consequences of his testifying to something not true, with the possibility of such a child’s being influenced by the statements of those about him, and his liability to be easily induced to- remember, or to think he remembers, a fact which he is told happened, and which he is told he must repeat upon the witness stand, should be considered in determining whether or not such a statement, unsupported by other evidence, and expressly contradicted by several witnesses, who were present, and saw just what did happen, is sufficient to sustain a verdict founded solely thereon. It is scarcely conceivable that this child, when asked about the occurrence upon his examination before the police magistrate, should not have stated that he asked the driver to stop, or that the car did stop, if such was the fact. At that time it was not realized that it was necessary for him to testify to that fact in order to entitle him to a verdict. The plaintiff was represented by his counsel before the police magistrate, and it is scarcely conceivable, if his counsel had been informed of the fact that the car had stopped, and that it was its sudden motion that threw the plaintiff off, and caused the injury, that he would not have seen to it that such a statement was then made by the plaintiff. Yet, several years after, when called upon to testify, he for the first time makes such a statement.

The plaintiff, thus being so interested in the result that his testimony is open to scrutiny, having made a statement in a judicial proceeding within a month of the injury which is at least inconsistent with that made upon the stand in this case, and being contradicted by every other witness who was present and saw the occurrence, it must certainly be said that there was a very strong preponderance of evidence against the plaintiff’s case. To justify our granting a new trial upon the ground that the testimony was against the weight of evidence, it must appear from the whole testimorty that the statement of the plaintiff was so overborne by the contrary evidence as to satisfy us that the verdict of the jury was not really based upon a fair consideration of the testimony, but was induced by some other .feeling or consideration. This, I think, is such a case. Here there was really no evidence to sustain this verdict, except the evidence of the plaintiff, corroborated to some extent by his brother, both of them children under 10 years of age. This statement, while not in itself impossible, is. somewhat improbable. It is contradicted by their own statement, made when the occurrence was fresh in their memory; it is contradicted by the sworn testimony of every witness to the injury who was called and examined; and then we have the fact of the age of the plaintiff and his brother, and, under the circumstances, the extreme probability that their statement was influenced or controlled by those of more mature years about them, when it was realized that this fact must be sworn to, to enable the plaintiff to recover.

Upon the whole case, I think that this verdict was so much against the weight of evidence that it is our duty to reverse the judgment, and order a new trial, with costs to appellant to abide event. All concur.  