
    Ellis R. Williams, App’lt, v. Delaware, Lackawanna and Western Railroad Company, Resp’t
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 26, 1895.)
    
    2. Witness—Cbedibility—Former testimony. ,
    Where, upon a retrial, the evidence of the plaintiff’s witnesses is essentially changed for the apparent purpose of avoiding a former decision, the court may take as the fact the evidence given by the witnesses on the-former trial.
    
      3. Appeal—Evidence—Former trial.
    The judgment will not be disturbed upon the ground that the court erred in not permitting the plaintiff to read in evidence the testimony of witnesses sworn upon a former trial, to the effect that three brakemen were not a sufficient number to properly manage the train, where such omission was not the proximate cause of the plaintiff's injury and did not contribute to produce it.
    Appeal from a judgment of nonsuit.
    
      W. T. Dunmore, for app’lt;
    
      W. & N. F. Kernan, for resp’t.
   Per Curiam.

This action was to recover for personal injuries ■sustained by the plaintiff. It was based upon the alleged negligence of the defendant in mainfaining a low bridge over its track .■at Norwich, N. Y., without notice to the plaintiff of its condition or other protection against injury therefrom. The plaintiff at the time of bis injury was a brakeman in the employ of the defendant. The accident occurred July 8, 1882. This action was commenced December 30, 1882. It was first tried in February, 1884, when a verdict was rendered for the plaintiff. The defendant thereupon moved for a new trial, which was denied. It then appealed from the judgment and order to the general term. The appeal was twice argued, and in January, 1886, a decision was handed down reversing the judgment and granting a new trial. The case was .again tried at the Oneida circuit in May, 1886, and the plaintiff ■again recovered a judgment. From that judgment, and from an order denying the defendant’s motion for a new trial, the defendant appealed to this general term; and in January, 1887, a decision was handed down affirming the judgment and order, with costs. From the judgment and order of affirmance the defendant appealed to the court of appeals, where the case was argued before^ the second division of that court. In December, 1889, a decision was rendered reversing the judgment and granting a new trial, with ■costs to abide the event. The case was again tried at the Oneida circuit in May, 1890, and at the close of the evidence the plaintiff was nonsuited. From this history of the case it will be seen that it has become somewhat familiar to this court. This is the third time it has been before us. On the first appeal, this court held that the question whether the defendant was negligent in maintaining a bridge at the height of that in question, without notice to its employes or otherwise protecting them against injury from it, and whether the plaintiff was guilty of contributory negligence, were questions of fact, and properly submitted to the jury. The judgment was, however, reversed upon the ground that the trial court erred in submitting the case to the jury on the theory that the defendant was negligent in not furnishing four brakemen, instead of three, as there was no evidence that the plaintiff’s injury was the natural or probable result of that omission, or that the .accident would not have occurred without them; or, in othei; words, because the evidence failed to show that such omission was the proximate cause of the plaintiff’s injurjL After a retrial of "the case, and upon the second appeal, the court followed its decision upon the former appeal, and affirmed the judgment and order •denting a motion for a new trial. On the appeal to the court of appeals the judgment was reversed, that court holding that as the. accident occurred in the daytime, as the" bridge was in plain sight, and as the plaintiff knew the train was about to pass under it, and turned his back to it, and passed to the rear of the train when he-was struck, a refusal to nonsuit was error, and that, if the plaintiff had exercised ordinary care and observation, he must have known that the bridge was not of sufficient height to permit a person to pass under it standing on the top of the car. It was, in effect,, further held that the rule the plaintiff assumed the usual risks and perils of the service, and of the open, visible structures known to him, or which he must have known had he exercised ordinary care and observation, was applicable, and he was guilty of such contributory negligence as to bar a recovery in-the action.

It is contended by the respondent that this decision is controling, and that the action of the trial court in nonsuiting the plaintiff should be sustained. This contention must- be upheld, unless the evidence upon the last trial is essentially different from that given upon the former one. We have examined the evidence, contained in the record before us, and also that contained in the appeal book upon which the former appeal was decided. While 'it must be admitted that the evidence of the plaintiff is somewhat different from that given by him upon the former trial, yet most, of the material facts relied upon by the conrt on the former appeal as a basis for reversing the judgment were established upon the-last trial, and most of them were undisputed. Under these circumstances, we áre reluctant to disturb the decision of the trial court, as it is manifest that it sought to follow the rule established by the court of appeals in this case, as especially in view of the-apparent disingennousness of the plaintiff in giving his testimony upon' the last trial, and his obvious effort to so change his evidence as to avoid the former decision in this case. In the case of. Hunter v. Cooperstown, etc. R. R. Co., 126 N Y. 18; 36 St. Rep. 367, where upon a retrial, the evidence of the plaintiff’s witnesses-was essentially changed for the apparent purpose of avoiding a former decision, the'court intimated that, in view of the doubt, resting upon the character and correctness of the evidence as thus-changed, it might take as the fact the evidence given by the witnesses on the former trial. In that case the judgment was again reversed, although the general term was of the opinion that under' the evidence, as changed, it was not within the former decision, and was sufficient to present a question of fact-for the ]ury. While-the question of credibility of the plaintiff’s evidence was doubtless a question for the jury, still, under the circumstances, and in view of the former decision of -the court of appeals in this case, we are not disposed to interfere with the judgment appealed from, or to-follow or distinguish the other decisions of that court which the appellant contends are not in harmony with its decision in this case. We are of the opinion that that decision was broad enough to cover the decision of the trial court, and that, if it is to be-modified or overruled, it should be by that court, and not by this.

Nor do we think that we should disturb the judgment upon the-ground that the court erred in not permitting the plaintiff to read in evidence the testimony of witnesses sworn upon a former trial, to the effect that three brakeman were not a sufficient number to properly manage the train. Upon a former appeal, where all this evidence was before us, this court held that it was insufficient to justify the trial court in submitting to the jury the question of the defendant’s negligence, based upon an omission to furnish four bralcemen, instead of three, as such omission was not the proximate cause of the plaintiff’s injury, and did not contribute to produce it. 39 Hun, 430.

Judgement affirmed with costs.  