
    Rebecca Hollon, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    January 19, 1912.
    . Railroad.—negligence — failure to call witness — contributory negligence of a pedestrian struck by a. street car.
    Where in an action to recover for personal injuries sustained by the plaintiff, who was struck by defendant’s street car at. a street cross- : ing, it appears that the plaintiff was accompanied by her daughter, who was present during the trial, and the plaintiff’s version of the manner in which the accident happened is contradicted by the motorman of the car and by two other witnesses, the-refusal of the trial judge to instruct the jury that from the failure of the plaintiff to- call her daughter as a ..- witness they might draw the inference that her testimony might be unfavorable to her, is reversible error.
    Thomás, J., dissented.
    . Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1911) upon the verdict of a jury for $3,000, and also from ■ an order, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes. .
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Frederick W. Sparks, for the respondent..
   Rich, J.:

" The plaintiff has recovered in an action against the defendant for injuries received in consequence of her being run over at a street crossing by one of defendant’s cars.

August 17, 1908, at about nine p. M., plaintiff says that as she started to cross Fulton street, in the city of Brooklyn, she looked down the street and saw a car approaching about two hundred feet away.. It was thirteen, feet and eight inches from the curb to the first rail of defendant’s track. She testified: “Then when I got near the first rail I looked again. The car was then about to the wine store,” It was undoubtedly about seventy-five feet away. She noticed that the car was lighted, but did not observe its speed. She says: “I kept on and I got in the track going uptown, in the middle of the track, I looked again and the car was so near on me I tried to step back and I felt a blow, and that was all.” The car was going fast, and if her evidence is true she was not guilty of contributory negligence as [matter of law in going upon the track.

The judgment must be reversed, however, because of the error of the justice presiding at the trial in refusing to instruct the jury that they might infer from the failure of the plaintiff to call her daughter as a witness that her testimony might be unfavorable to the plaintiff. The daughter was with the plaintiff at the time of the accident and was present in court during the trial. The motorman of the car had testified, and his testimony was corroborated by two witnesses, that he saw plaintiff and her daughter approaching the track and cut off his speed; .that before reaching the track they stopped, whereupon he put the speed on again, and when the car was within ten or twelve feet of the crosswalk the plaintiff attempted to cross in front of the car; that her daughter took hold of her arm and tried to pull her back; that she was not on the track but was hit by the corner of the car. The question as to whether plaintiff stopped before reaching the track and whether she was upon the track when the car hit her were important questions of fact, and the testimony of the daughter upon this subject was not merely cumulative but substantive. The daughter possessed the knowledge which was important. She was -under the control of plaintiff and the failure to call her is not explained.

The refusal to charge as requested was reversible error, and it follows that, upon this ground and without considering the other exceptions, the judgment and order must be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Burr and Woodward, JJ., concurred: Thomas, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  