
    Julie S. Hueser, as Administratrix, etc., of Theodore A. Hueser, Deceased, Respondent, v. New York Transportation Company, Appellant.
    Second Department,
    March 17, 1911.
    New trial — newly-discovered evidence—reputation of proposed witnesses — cumulative evidence.
    On a motion for a new trial upon the grounds of newly-discovered evidence the Special Term and the Appellate Division may consider the reputation and character of the proposed witnesses in determining the probative, force of the proposed testimony. Thus, it may consider the fact that the proposed witnesses before trial denied any knowledge of the facts involved in order to avoid being called as witnesses.
    The test to he applied in determining whether newly-discovered evidence, which is wholly cumulative, is sufficient to warrant the granting of a new trial is as to whether the former testimony reinforced by the new testimony would probably change the result so that the jury would make a different finding on the issue of fact involved.
    Action to recover for the death of a pedestrian caused by a motor vehicle in which a motion for a new trial was made upon the ground of newly-discovered cumulative evidence showing that the car which struck the decedent turned out of the line of vehicles at the time of the accident. Held, that the new evidence would probably he insufficient to overcome the evidence presented by the defendant upon this issue of fact and that a new trial should not be granted.
    In such action an admission by the defendant in open court that the collision was the cause of the death of the plaintiff’s intestate was not sufficient to mislead her so as to believe that the defendant admitted that the collision was due to the motor car veering out of the line of other vehicles, or that the defendant would not contend that the collision was due to the acts of the decedent, so that no surprise on these issues could be claimed. •
    Although some of the defendant’s witnesses testified that the vehicle did not pass over the decedent’s body, while the plaintiff’s witnesses testified that it did, mere cumulative evidence in the plaintiff's favor as to that fact is not sufficient to warrant a new trial, although it may to a degree discredit the defendant’s witnesses, for, the death by collision being admitted, the new evidence had no hearing on the crucial issue as to whether the vehicle veered out of the line of other vehicles when it struck the decedent.
    Appeal by the defendant, the Hew York Transportation Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1910.
    
      
      Charles F. Brown [Theodore H. Lord and Arthur K. Wing with him on the brief], for the appellant.
    
      Frederick It. Iiich, for the respondent.
   Jenks, P. J.:

This is an appeal from an order of the Special Term that grants a new trial to the plaintiff upon the grounds of newly-discovered evidence and of surprise. The plaintiff’s husband, attempting to cross Fifth avenue near Thirty-fifth street in the borough of Manhattan, Hew York city, came in collision with the defendant’s electric cab and received injuries that caused his death. This action is brought to recover damages for the defendant’s negligence. The theory of the plaintiff was that her intestate had halted to permit the traffic to pass, when the defendant’s electric motor cab swerved out of the line of traffic and struck him. The defendant’s version was that as the intestate dodged in and out of the way of the vehicles in the street, he stepped back suddenly to avoid a vehicle and brought himself into collision with the defendant’s cab then moving in the line'of traffic.

The main question litigated was whether the defendant veered out from the accustomed line of traffic required in that street. The learned court without exception instructed the jury that, unless “ the cab did come out of line and struck him [plaintiff’s intestate], in no case could there be a verdict for the plaintiff.” The contention of the plaintiff was supported at the trial by the testimony of her witnesses Wise and Sullivan, who were apparently disinterested, and who were in the avenue at the time of the accident about their business respectively. The proposed new testimony upon this issue is, therefore, cumulative. The new witnesses whose affidavits bear upon this issue are Engman and perhaps Meagher. Engman, who was sewing in a window nearby, deposes that he saw the electric brougham come up from behind, turning out at the middle of the street, going at an estimated rate of 25 miles an hour, and that it knocked the intestate down and dragged him for 15 feet. Meagher, who was walking in the avenue, had his attention arrested by a call, and looked to see the rear wheels of the brougham passing over the intestate. He deposes that the brougham was not following any other vehicle, but appeared to be passing a horse and carriage at the rate of .25 miles an hour. This testimony might permit the inference that the defendant’s cab did not keep in line. Although credibility is a question for the jury, yet the Special Term and this court may consider the reputation and character of the proposed witnesses in determination of their probable probative force. (Hagen v. N. Y. C. & H. R. R. R. Co., 100 App. Div. 218.) How Meagher deposes that he was not called as a witness because he informed an inquirer on behalf of the plaintiff that he did not see anything of the accident save that the brougham ran on the sidewalk. And his avowed reason for his lie is that he had no desire to be drawn into the case, as he had “ no time to lose and did not care to be bothered about,it.” Of course, as a witness he would speak under the sanctity of an oath or affirmation, but nevertheless we have the record of a deliberate lie for mere convenience, which he now repudiates to help, of my own volition,” the widow of the intestate who had lost her support. Would the testimony of the former witnesses, Wise and Sullivan, which was not considered by the jury as sufficient to establish the plaintiff’s theory, reinforced by that of Engman and Meagher, probably change 'the result so that the jury would find that the defendant’s car did veer out of the line of traffic to strike the intestate? For this is a test which must be applied. (Kring v. N. Y. C. & H. R. R. R. Co., 45 App. Div. 373 ; O'Hara v. Brooklyn Heights R. R. Co., 102 id. 398; Hagen v. N. Y. C. & H. R. R. R. Co., supra; Baylies N. T. & App. [2d ed.] 570.)

We may assume that the defendant’s former witnesses are accessible and would adhere to their testimony. The chauffeur, not then in defendant’s employ, testified that he did not pull out of line and never moved out of it. Smith, who was walking in the avenue at the time, testified that the intestate was walking diagonally among teams ; that he stopped, hesitated and turned back, and came right in front of the cab that struck him; that he turned and moved in front of it sideways. Hollyer, who was driving a horse and hansom, testifies that he saw the intestate leave the sidewalk 15 feet below the crossing and take a diagonal course, and that he stepped back against the dashboard of the cab. Sergeant Ryan of the police, in charge of the traffic at this point, testified that the intestate stepped right in front of the automobile ; that the motor car did not turn out of the line, but followed a straight line with all of like cars. Burton testifies that he was in the avenue and that the intestate stepped off the curb ten feet in front of him ; that the intestate was dodging ” the vehicles, and in so doing he dodged back into collision with the cab, which was in the second line, and that he did not see that cab “swing out at anytime” to pass vehicles in front. McCarthy, who was being driven in a cab, noticed the intestate “ back in ” and then saw him struck by the defendant’s cab. He did not notice before the accident whether it had turned off to go around other vehicles. But he testifies: “ All were in one line of carriages coming down. This automobile was in this line.” I am not convinced that this new evidence would probably enable the plaintiff to overcome the evidence presented by the defendant upon the admittedly crucial point of the case.

I may comment that there was no suggestion of surprise made at the trial. The affidavit of one of the attorneys and counsel for the plaintiff shows that before the trial the defendant was requested to concede that the death was due to the collision, and that accordingly such concession was made on the record. The affiant further says that he had the right to rely thereon; that he was not required to make any preparation to meet any evidence that might be offered as “to the killing,” and that he was nonplussed at the trial by the defendant’s testimony that the brougham “ did not pass over body of said deceased, and that the deceased backed into the brougham and struck his head against the dashboard, which, of course, was clearly evidence tending to show lack of negligence on the part of the defendant,” and that it must “ be evident * * * that neither deponent nor his said counsel had the slightest idea that such evidence would be offered.” But there was no question raised that death did not ensue from the collision. And I fail to see how the concession that collision was the cause of death misled the plaintiff to believe that the defendant admitted that the collision was due to the veering out of line, or that the defendant would not contend that the collision was due to the conduct of the plaintiff in losing his head to step into the path of the cab. On the trial the plaintiff’s witness Wise testified that the cab struck the intestate and dragged him underneath. Bowen testified that the cab ran oyer the intestate. Sullivan testified that the intestate fell under the cab and that it dragged him. Sheehan, the chauffeur, testified that his machine ” did not run over the intestate. Smith testified that the cab did not pass over the intestate, as did Hollyer and Sergeant Ryan. Meagher, the proposed new witness, and also Gelchrist depose that the cab did run over the intestate, and Engman testifies that the cab dragged the intestate.’ . The probative force of Gelchrist’s testimony is subject exactly to the consideration to be given to that of Meagher, which I have noted, because he, too, deposes that he lied, exactly as Meagher lied and for the same reason. I am not convinced that their cumulative testimony would convince the jury that the wheel of the cab ran over the intestate. But assume that it did. Would that circumstance convince the jury that the defendant’s cab veered out of the line of traffic? Or does it follow that because a motor cab runs over a pedestrian he could not or probably, did not come into collision with it by stepping in its way ? It is true that the proposed new testimony might bear on the credibility of the defendant’s witnesses, who testified that the car did not pass over the body, but the variance of the witnesses was not over a material issue, and bystanders may well honestly differ as to the details of such an accident, which is but the affair of a moment. The other suggested witnesses are two physicians, of whom one is the family physician of the plaintiff and the other is the coroner’s physician. The first deposes that he examined the body, to find the fracture of several ribs, a puncture of the lungs and a fracture of the arm, and the second deposes that death was caused by a multiple fracture of the ribs and the laceration of the lungs. But there was no dispute that the death was due to the collision, there was no contention that the intestate did not suffer such injuries, and such testimony would not bear on the question whether the cab veered out of the line to collide with the intestate. Mor would it render impossible or improbable the. theory of the defendant that the intestate came into collision by stepping back or turning back into the way of the defendant’s vehicle.

I advise that the order be reversed, with costs.

Hibsohberg, Burr, Carr and Woodward, JJ., concurred.

Order reversed, with costs, and motion denied, with costs.  