
    Lafayette Cole, App’lt, v. The Fall Brook Coal Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    New trial—Negligence—Newly discovered evidence.
    On a trial of an action for injuries caused by negligence the plaintiff testified that his hips were crushed; that he could do no manual work without pain, and that his injuries were of a permanent character. Defendant offered no testimony as to plaintiff’s physical condition. Upon affidavits showing that plaintiff worked after the trial, defendant moved for a new trial, but was met by affidavits showing that plaintiff’s labor was attended with great pain and suffering and that he was compelled to work by the necessities of his family, and the motion was denied and the denial affirmed, with leave to renew. The motion was renewed on affidavits showing that subsequent to the trial plaintiff performed feats of strength for the amusement of friends; assaulted a brakeman, showing great agility and strength, and had admitted that he was a strong and vigorous man. Held, that this was not cumulative evidence, and that a new trial was properly granted.
    Appeal from an order granting respondent a new trial on the ground of newly discovered evidence.
    
      Jacob Schwartz, for app’lt; Gabriel L. Smith, for resp’t.
   Lewis, J.

The plaintiff was injured while in the employ of the defendant as brakeman on the 9th of November, 1887, and brought this action to recover damages for his injuries. The trial took place at the Monroe circuit before Justice Rumsey in 1889, the plaintiff recovering a verdict of $8,000.

The plaintiff’s evidence tended to show that, while in the act of coupling a switch engine to a section of a train, he was caught between the end sills of the tank and a gondola car and was severely crushed, and that the accident occurred in consequence of the absence of one of the bumpers upon the gondola car.

The defendant’s evidence sharply controverted the plaintiff’s evidence as to the defective condition of the car. The plaintiff’s -own testimony was substantially all he produced as to the manner in which the accident occurred. He testified that he stepped in between the gondola car and the switch engine to effect the coupling, and that because of the defective condition of the bumper "upon the gondola car he was crushed into a space of about six inches; that he was standing with his sides to the cars, and that the pressure was upon his hips. He testified that his hips were from 'sixteen to seventeen inches broad at the place where the pressure came; that before the accident he was an exceptionally strong, robust man, able to perform severe manual labor; and in describing the effect of his injuries, be testified that he was' confined to his house some eleven or twelve weeks; that since the accident he had tried to do manual work, but could not; his strength gave out; that he had no nerve; “ when I endeavor to lift or stoop over it hurts me terribly, so I cannot do it; I can .stoop over, but not to raise up with any heft or weight; the pains take me through my hips and across my back, and extend up my "back to the back of my head, and sometimes in the temples; when I stoop over in that way, or attempt to do any manual labor, it makes me sick or faint; any exercise or quick action, or anything of the kind, makes me nervous, and faint and trembly ; in attempting to do work I fainted 'away a number of times since; I .am home now, and have been ever since; I cannot walk very far at a time; after going about so far, my legs refuse to carry me and give out; I have no control of them; there don’t seem to be any use of the muscles, and they give out, and I have got to get down or fall down.” He produced other evidence tending to show that his injuries were of a permanent character.

The defendant offered no testimony as to plaintiff’s physical condition.

The defendant moved for a new trial before Justice R,umsey upon the ground of newly discovered evidence, and produced affidavits tending to show that the plaintiff was not the physical wreck he claimed to be, but that very soon after the recovery of the verdict he engaged in physical labor and was apparently able to do a man’s work. The plaintiff met the defendant’s.motion by his own affidavit, stating that while he had done some work since the verdict, that his labor was attended by great pain and suffering; that he was not, in fact, able to work, but that he was driven to it by the necessities of a large family; “ he was obliged to work ■or starve.” He produced other affidavits to sustain his contention, and the motion was denied. The defendant appealed to the general term from the order denying its motion; the general term affirmed the order, with leave, however, to the defendant to renew the motion upon new papers.

The motion was renewed and on the hearing of the second motion numerous affidavits were read by the defendant. Many of them were made by the same affiants and stated substantially the same facts as those contained in the ones used on the first motion; but they were re-sworn to. Other affidavits were presented showing facts and circumstances occfirring after the trial and after the making of the first motion, which tended very stongly to show that the plaintiff commenced almost immediately after the trial to perform manual labor and doing the work of a strong and able-bodied man. These were practically the same facts as stated in the affidavits upon the former motion ; but defendant’s affidavits; described acts performed by the plaintiff after the trial consisting-of physical feats which it would have been impossible for him to perform had he been in the physical condition he had testified he was. These feats were performed in a store in the neighborhood where he resided, for the amusement of spectators, and not for the purpose of earning bread for his family. The affidavits further stated that he assaulted a brakeman in a railroad car, and in the contest demonstrated that he possessed great agility and physical strength.

They further stated that after the trial the plaintiff, admitted, that he had recovered his health, and was a strong, able, vigorous-man. The plaintiff presented his own and other affidavits controverting the facts stated in the moving affidavits; the plaintiff, however, did concede that he attempted to perform the feats referred, to in the moving affidavits, but in so doing did not use much, physical strength.

Justice Rumsey upon the second motion, after a careful examination of the very voluminous papers, granted the motion for a. new trial. We think in so doing he exercised his discretion wisely. The facts presented to him on the second motion were much stronger than those presented on the first motion. In deciding the first motion he assumed that the plaintiff, in working, did so with great pain and suffering, but was compelled to work to keep his family from starving. On the second motion it was-shown that the plaintiff admitted that he had exaggerated and overstated his condition upon the trial of the case. If plaintiff performed the physical feats mentioned in the moving affidavits, he in a most unmistakable manner contradicted his evidence given on the trial.

This latter class of evidence was not cumulative. Ho evidence of that character was given upon the trial. It did not then exist. In the case of Strout v. Stewart, 63 Me., 227, the plaintiff sought-to recover for professional services rendered by him as an attorney for the defendant upon the employment of another attorney. The defendant denied that he had ever authorized the employment of the plaintiff, and had a verdict in his favor on this evidence. The plaintiff moved for a new trial on the ground of newly discovered evidence, and produced affidavits showing that the defendant had admitted after the trial that the plaintiff was-his counsel in the ease. The court held that this was not cumulative evidence. Gardner v. Mitchell, 6 Pick., 114; People v. Superior Court, 10 Wend., 294.

If the injuries sustained by the plaintiff were not permanent,, if, in fact, he has substantially recovered his health, the verdict was excessive in amount, and justice demands that the defendant should be allowed to present to another jury the newly discovered evidence, with a view of at least lessening the damages. If the affidavits presented by the defendant are true, the plaintiff deliberately misrepresented his physical condition with a view of deceiving the court and jury. It is apparent to a layman, familiar with the anatomy of the human body, that had the plaintiff’s hips, which he testified were sixteen or seventeen inches wide, been compressed by a force applied to the sides thereof into a space of six or seven inches, the surgeon who attended him would not have been, as he testified he was, in doubt whether any of the plaintiff’s pelvic bones were broken by the accident.

If plaintiff was, in fact, injured as he claims, his case will suffer no injury by being retried.

The order appealed from should be affirmed, with costs to abide the event

Dwight, P. J., and Macombek, J., concur.  