
    Maggie Clark, as Administratrix, etc., of Horatio N. Clark, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      New trial — newly-discovered evidence that a decedent, killed at a railroad crossing,, looked and listened— discretion of triad justice.
    
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the intestate was killed while attempting to drive across the tracks of the defendant, a railroad company, which the plaintiff alleged did not give proper signals. Upon the trial of the action the plaintiff could not produce any witness who was able to testify as to the conduct of the decedent at the time of the accident, and the court directed a verdict for the defendant- upon the-ground that it did not appear that the intestate as he approached the crossing looked and listened for the approach of the train. Subsequently, on a motion for a new trial made upon the ground' of newly-discovered evidence, the plaintiff proved by his affidavit that a person named Gibbs saw the decedent approach the crossing, saw the collision and saw the decedent look and listen.
    
      Held, that the evidence of Gibbs was not cumulative and would probably have changed the result, and that a new- trial should be granted;
    That where the trial justice who heard the motion granted a new trial under such circumstances, his discretion would not be reviewed.
    , Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court; made at the Schenectady Special Term and entered in the office of the clerk of the county of Montgomery on the 25th day of November, 1895, granting the motion of the plaintiff for a new trial on the ground of newly-discovered evidence;
    
      
      Ashbel Green and J. D. Wendell, for the appellant.
    
      L. F. Fish, for the respondent.
   Merwin, J.:

The jdaintiff, in this case, sought to recover damages for the death of her husband, Horatio N. Clark, which was, as she claimed, caused by the negligence of the defendant.

In the afternoon of May 7, 1894, at a highway crossing at or near-a station of the defendant, at Auriesville, in the county of Montgomery, the said Clark, while attempting, with a horse and wagon, to cross the tracks of the defendant, was struck by a train of the defendant and killed. The claim of the plaintiff is, that. the defendant was negligent in not giving sufficient signals of the approach of its train. (Dyer v. Erie Railway Co., 71 N. Y. 228.) '

At thé trial the plaintiff did not produce any witness who was able to testify as to the conduct of the decedent at the time of the collision. At the close of the evidence the court directed a verdict for the defendant on the ground that the evidence was not sufficient to authorize the jury to find that the.decedent, as he approached the crossing, looked and listened for the approach of a train. Doubt was expressed as to whether the evidence was sufficient to sustain a finding that defendant was negligent. Several witnesses on the part of plaintiff had testified that they did not hear any signal, while, on the part of the defendant, several witnesses testified absolutely that the bell was rung and whistle blown.

Subsequently the plaintiff made, a motion for. a new trial on the ground of newly-discovered evidence, based upon affidavits and a settled case. The new evidence was that of one Gibbs, who saw the decedent approach the crossing and saw the collision,, and saw the decedent look and listen. The evidence of Gibbs, as set forth in his affidavit, if it had been given at the trial, would, in connection with the surrounding circumstances, have made the question of contributory negligence one for the jury to have passed upon. Other new evidence was shown from several persons to the effect that they could testify positively that the bell was not rung or whistle blown as the train approached.

The evidence of Gibbs was not cumulative, for, as held by the court at the trial, there was practically no evidence. on the part of the plaintiff as to the conduct and care of the decedent at the time of the collision. The new evidence as to want of signals was, perhaps, cumulative, but it might properly have a bearing upon the exercise of the discretion of the court in such cases. (3 Graham & Waterman on New Trials, 1104.)

The new evidence would probably have produced a different result to the extent that the case would have been sent to the jury. This being so, the trial justice, who heard the motion, thought it right to grant a new trial. His discretion should not, I think, be disturbed. In Barrett v. The Third Ave. R. R. Co. (45 N. Y. 628, 632) it is said : Motions to set aside verdicts as contrary, to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by .any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.” (See, also, Glassford v. Lewis, 82 Hun, 46; Holmes v. Roper, 10 N. Y. Supp. 284; Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54.)

Substantial justice is said to be the main test. (Clegg v. N. Y. Newspaper Union, 51 Hun, 232, 237.) When the order for a new trial is granted by the judge who heard the case, it should not be, reversed unless error clearly appears.

All concurred, except Laudon, J., not sitting.

Order affirmed, with costs.  