
    DANIEL BELTON, Plaintiff and Respondent, v. EDWARD W. BAXTER et al., Defendants and Appellants.
    
      [Decided April 30, 1870.]
    Where the evidence of the defendant’s negligence is conflicting, it is error to take it from the jury, and to determine as a matter of law that there is negligence.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from a judgment and from an order denying a motion for a new trial.
    This action was to recover damages for injuries sustained by the alleged negligence of the defendants’ servant. In the early evening the plaintiff was passing through Fourth street. As he approached the Second avenue he saw a street-car coming up. It partly stopped at the lower crossing, when the defendants’ servant, driving a horse attached to a cart, behind the car, turned out to pass the car. The plaintiff attempted to cross the avenue in front of the car. He crossed beyond the railroad track, when he was struck by the defendants’ cart and injured.
    The case was tried before Chief-Justice Barbour and a jury.
    The defendants requested the court to submit the question of the defendants’ negligence to the jury, which was refused ; and the chief-justice charged the jury that “ as matter of law there was negligence on the part of the defendants.”
    A motion was made at Special Term for a new trial, on the ground of surprise and of newly discovered evidence, which was denied.
    
      Mr. George W. Paine for appellants.
    A new trial should have been granted.
    The evidence of the carman in relation to the vicious nature of the horse was a surprise to the defendants, there being no allegation of such, facts in complaint, and no knowledge of the same on the part of the defendants,
    A new trial may be granted where a party is surprised by the unexpected adverse testimony of his own witness (Oakley v. Sears, 7 Robt., 111; Graham & Waterman on New Trials, 225).
    When it clearly appears that a witness makes a mistake in giving his testimony upon a material point in the cause, the court may grant a new trial (Coddington v. Hunt, 6 Hill, 595).
    The question as to the negligence of the defendants should have been submitted to the jury, because there was a conflict of testimony in relation to the existence of those facts essential to prove negligence on the part of the defendants (Seabrook v. Hecker, 4 Robt., 344; Ernst v. Hudson River R. R. Co., 35 N. Y., 9; Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y., 49; 13 N. Y., 3 Kern., 533).
    The only evidence of negligence was—
    As to the rate of speed at which the carman was driving when the accident occurred.
    As to the vicious character of the defendants’ horse.
    The complaint should have been dismissed, on the ground that the plaintiff’s negligence contributed to the accident.
    In relation to the conduct of the plaintiff there was no conflict of evidence; and where the facts are uncontroverted, the question of negligence is one of law for the court (Gonzales v. New York & Harlem R. R. Co., 38 N. Y., 440; Dascomb v. Buffalo & State Line R. R. Co., 27 Barb., 222).
    
      Mr. Stephen A. Walker for respondent.
    The ruling of the learned justice, in denying a motion to dismiss the complaint, was correct.
    The only remaining exception is to the refusal of the presiding justice to charge the jury, that upon the evidence submitted defendants’ negligence was a question for the jury.
    A judge has the right thus to charge in a proper case. On uncontradicted facts the question of negligence is a question of law for the court (Gonzales v. Harlem R. R. Co., 38 N. Y., 440; Dascomb v. Buffalo and State Line R. R., 27 Barb., 223).
    This rule is asserted by those cases which limit and define it (Ernst v. H. R. R. R., 35 N. Y., 1, and cases cited; Wolfkiel v. Sixth Avenue R. R., 38 N. Y., 40; Keller v. N. Y. Central R. R. Co., 24 How., 173).
    The motion for a new trial was made on the grounds of newly discovered evidence and of surprise, and was properly denied, The defendants’ affidavits assert in general that thé testimony of their witness Johr, as to the fractious character of his horse, was a surprise to them, they theretofore having supposed him to be a quiet animal, and the driver’s affidavit asserts that this discovery of an evil disposition was made subsequent to the accident, but. of course, prior to the trial.
    Such evidence cannot be called newly discovered. The fact of viciousness was stated by defendants’ own witness at the trial-That defendants themselves did not know it, is a mere immaterial negative. They were in court, and if. thought necessary, could have testified to their ignorance upon the subject.
    Hewly discovered evidence must be such as ordinary vigilance would not have disclosed. Hot cumulative. And material (Oakley v. Sears, 7 Rob., 112).
    In a case of real surprise from the testimony of one’s own witness, proof must be furnished that on a new trial the contrary can be proved by other witnesses (Phenix v. Baldwin, 14 Wend., 62).
   By the Court:

Monell, J.

The chief-justice, in recapitulating some of the evidence to the jury, stated to them that it was shown “that the defendants’ cart and horse were being driven behind a railroad car, up town. When they got in the neighborhood of the lower crossing of Fourth street the railroad car slackened its speed, and there the defendants’ driver turned his horse, he says, slowly out of the track. He had been driving in the track immediately behind the car. From that place (the lower crossing of Fourth street) to the upper crossing, or a few feet beyond it, he had made such speed that his horse’s head was about even with the heads of the horses of the railroad car. Judging from all the circumstances—considering that it was about the time of the lamps being lighted, that it was at the crossing of the streets, that the horse was skittish, hard-mouthed, and was controlled by only a common single bit (the driver testifying that it afterwards became necessary to put on a United States cavalry bit), and that the driver, by turning out to the east side of the railroad car, was in a position where he could not so well see parties coming from the west side—considering all these circumstances, the court'decides, as matter of law, that there was negligence on the part of the defendants. That question, therefore, is withdrawn from the consideration of the jury. It will be your duty to assume that the defendants were negligent in this act, which caused the accident—that the accident was caused, primarily, by their negligence.”

It must have been assumed by the chief-justice in this case that the evidence in support of the facts which he held to be conclusive of the defendants’ negligence was wholly uncontradicted. If that were indeed so, and such evidence was sufficient to convict the defendants of negligence causing the injury, there was no error in withdrawing that question from the consideration of the jury.

But I think the chief-justice was mistaken in assuming that there was no conflict in the evidence. The only fact which tended to establish the defendants’ negligence was the rate of speed at which the defendants’ servant was driving at the time of the collision. The other and only other fact stated, namely, “that the horse was skittish, hard-mouthed, and was controlled only by a common single bit,” was not supported by any evidence of knowledge in the defendants.

In regard to the speed of the defendants’ horse the plaintiff testified, It was going so fast I could not get in front of the cart; the cart was going so fast I could not get on my feet.” Again, “ I don’t know that I can state how fast defendants’ horse was going; he was going considerably faster than the car horses; he must have been, to keep up with them. When I crossed the railroad the car was going faster than usual, and the cart was going faster than the car.” One of the plaintiff’s witnesses testified that when the plaintiff was being dragged, “ the cart was going pretty fast—faster than a railroad car usually runs.”

On the defense, however, the driver of the defendants’ cart, in answer to the question at what rate he was going at the time, said, “ A very good fast walking horse could go as fast as I did then.” He also testified, When my cart struck the plaintiff, I was going between four and five miles an horn’.”

The chief-justice must have overlooked this evidence in assuming that the negligence of the defendants was established as a matter of law; for it seems to me that if the jury had found (had the question been submitted to them) that the rate of speed of the defendants’horse was such as was testified to by the driver, it would have negatived the only piece of evidence having any tendency whatever to convict the defendants, and they would have been entitled to a verdict.

I am clearly of opinion, therefore, that the withdrawal from the jury of the question of the defendants’ negligence was erroneous, and for that reason the judgment should be reversed and a new trial had.

We do not, as it is not necessary, express any opinion as to the sufficiency of the proof of the defendants’ negligence, nor in regard to any concurring negligence there may have been on the part of the plaintiff. These are left open questions.

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