
    La Fayette Cole, Resp’t, v. The Fall Brook Coal Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. New trial — Surprise.
    In an action for personal injuries alleged to have been sustained by being crushed between two cars on account of the absence of a bumper, evidence that plaintiff, who was a large man, was crushed within a space of six inches, and that his injuries were permanent and incurable, and that his future life will be one of suffering and comparative uselessness, is within the issues, and cannot be urged as a surprise, and, defendant not having moved for a postponement, cannot thereafter be made the ground for a new trial.
    2. Same — Newly discovered evidence.
    The questions as to the particulars of the injury having been sharply litigated on the trial, a new trial will not be granted on the ground of newly discovered evidence, where such evidence consists of testimony of physicians that if the injured parts had been compressed within the space claimed by plaintiff he could not have recovered, and of others that plaintiff had since developed into an able-bodied man. Such testimony is clearly cumulative.
    Appeal by defendant from judgment in favor of the plaintiff, and from order denying new trial on a case, and from order denying new trial on ground of surprise and newly discovered evidence. Gabriel L. Smith, for app’lt; Jacob Schwartz, for resp’t.
   Corlett, J.

The plaintiff was employed as a brakeman on the defendant’s road, a corporation organized under the laws of the state of Pennsylvania. On the night of the 9th of November, 1887, while engaged in coupling cars, he received severe injuries, which he claimed crushed his hip bones and pelvis, injured his spine, and inflicted other bruises. The plaintiff’s contention was that the defendant’s negligence consisted in the want of a bumper on the car he was directed to couple to the engine after dark. The material allegations as to negligence and the extent of the injuries were put in issue by the answer. The trial was had in Corning, in April, 1889, before the court and a jury. It resulted in a verdict of $8,000 for the plaintiff. A motion for a new trial was made before the trial justice upon the ground of surprise and newly discovered evidence, which was denied. Application for a new trial was also made on a case and exceptions, which was denied. Judgment was entered ,on the verdict, and the defendant appealed to this court. The material controversy as to the plaintiffs right to recover was narrowed down to the question as to whether the bumper was on the car which the plaintiff coupled to the engine. The plaintiff’s evidence tended to show that it was broken off, was an old break of sufficiently long duration to charge the defendant with knowledge of its existence, and that at the time, he was directed to make the coupling he was ignorant of the defect, and proceeded in the discharge of his duties upon the assumption that the bumper was all right and the car in good condition, and that by the negligence of the defendant in the particulars above stated, although he exercised proper care and diligence on his part, he received the injuries for which the verdict was rendered.

The defendant’s evidence tended to show that the car was in good condition, the bumper on, and that the injuries were not caused by the negligence of the defendant, but by want of care and prudence on the part of the plaintiff. The defendant also controverted the extent of the plaintiff’s injuries, but swore no witnesses on that branch of the case. The charge of the trial justice was in all respects as favorable to the defendant as it had a right to claim, and the jury found in favor of the plaintiff’s contention, assessing the damages at the sum above stated.

There is no serious controversy upon this appeal as to the sufficiency of the evidence to warrant the verdict, or the correctness of the charge, nor is it plain that any exceptions were taken involving error. The real controversy is whether a new trial should be granted because of surprise and newly discovered evidence. On the trial the plaintiff’s evidence tended to show that the parts injured were crushed within a space of six inches; while the defendant’s evidence tended to show that there was a space or opening of twelve inches. The plaintiff’s evidence also tended to show that his injuries were of a permanent and incurable nature, and that his future life would be one of suffering and comparative uselessness. The defendant’s evidence on the question as to the extent of the injuries was confined to the light thrown on the subject by the cross-examination of the plaintiff’s witnesses.

The bumper in question was upon a gondola car at the rear end of the engine tank, where the plaintiff was crushed. The plaintiff was a large man, his dimensions from hip to hip being about sixteen or seventeen inches, and his weight 200 pounds. The defendant claims that squeezing a man of his measurement and size within a space of twelve inches would produce the injuries complained of. The question as to whether the bumper was gone or as to whether the plaintiff was squeezed into the narrow place claimed by him was sharply litigated upon the trial. It is a familiar rule that evidence within the issues framed cannot be urged as a surprise. The People v. Marks, 10 How. Pr., 261.

Where unexpected evidence is given on the trial, and the party is surprised, if plaintiff, he may withdraw a juror, and if defendant, move for a postponment. Messenger v. Fourth Nat'l Bank, 48 How., 542.

The cause of the injury, including the existence of the bumper, was in issue and sharply litigated, as was the extent of the compression or squeezing of the plaintiff’s injured parts, the seriousness of his injuries, and his own freedom from negligence. The defendant cannot; within the rules above referred to, successfully urge any evidence within the issues as a surprise upon it. If in fact evidence was given it did not anticipate, and which threw it off its guard, it was proper to apply to the court for a postponement, but after a verdict when no such application was made it is to late to urge such consideration as sufficient reason for the granting of a new trial.

The rules applicable to new trials for newly-discovered evidence are very familiar. The evidence must be discovered since the trial; it must appear that it could not have been obtained on the trial by the exercise of reasonable diligence; it must be material to the issues; it is not sufficient if it merely tends to impeach witnesses; it must not be cumulative; it must also be reasonably certain that a new trial will change the result. Bay lies on New Trials, 525 ; Raphelsky v. Lynch, 43 How. Pr., 157 ; Darbee v. Elwood, 67 Barb., 359; First National Bank of Plattsburgh v. Heaton, 6 N. Y. Sup. Ct., 37; 3 Hun, 414; Sistare v. Olcott, 22 N. Y. State Rep., 564.

“ It is only in case of indispensable necessity that a party will be relieved by the granting of a new trial.” Gautier v. Douglass Man'fg Co., 52 How. Pr., 325.

There is no substantial conflict in the cases. Different impressions and results have sometimes been produced by an application of the facts to each case. Where, for example, a conspiracy, based upon fraud and perjury, became known after the trial, it might control the application. 43 How. Pr., above cited.

The application of the defendant for a new trial on the ground of newly-discovered evidence is based upon the affidavits of thirteen different persons, some of whom are physicians and surgeons of alleged prominence and ability. Their affidavits are to the effect that if the injured portions of the plaintiff’s body were compressed within the compass claimed by him, death was inevitable and a recovery, partial or complete, impossible. It will be observed that this evidence is, in its very nature; cumulative. That question was within the issues and litigated upon the trial. It required the absence of the bumper to render possible the compression claimed on the part of the plaintiff. It is not urged that the crushing of it into so narrow a space could have occurred if the bumper was on the car, so that the evidence disclosed in the affidavits would tend to strengthen the defendant’s contention that there was a bumper, and thus overthrow the plaintiff’s claim that it was not there. The rest of the affidavits relied on by the defendant bear upon the extent of the plaintiff’s injuries by alleging with more or less amplification and detail that after the trial the plaintiff developed into an able-bodied man, performing vigorous and continued labor in various directions. The same remarks apply to this evidence. The extent of the injuries, including their temporary or permanent character, was squarely within the issues, and was necessarily litigated upon the trial. The defendant knew, and it was so apprised by the nature of the injuries, that the plaintiff would make effort to show all the injuries he liad received for the purpose of increasing damages. _ It follows that the evidence bearing upon the extent of the injuries would be simply cumulative.

In this connection it is not out of place to say that some of those making affidavits were employed by the defendant as detectives to watch the plaintiff, and to mate discoveries on the subjects stated in their affidavits, but none of them go far enough to show that the plaintiff had committed perjury on the trial, or practiced fraud upon the court., or that he engaged in any conspiracy. It must be assumed, for in the nature of things it always is so, that every person will do the best he can to strengthen his case in all its branches. No intelligent litigant or lawyer can he blind to these universal attributes of human nature.

Sixteen affidavits are produced on the part of the plaintiff to sustain the truth of his contention on the trial. Several surgeons and physicians of alleged standing and experience differ from those making affidavits on the part of the defense, and are to the effect that' the plaintiff could be compressed within the limits claimed, and not only survive, but suffer no greater injuries than shown upon the trial. The affidavits of the other witnesses tend to show that he performed some labor before and after the trial, but that his efforts were the result of poverty and necessity, attended with much suffering and inconvenience. The affidavits of the plaintiff and his wife are to the same effect, and tend to show "that he in no way exaggerated his case upon the trial, and that all his labors were attended with suffering, and that what he had ■sworn to upon the trial in reference to the nature and extent of his injuries was in all respects true.

Applying to these affidavits the rules above stated, the application for a new trial must be denied.

Dwight, P. J., and Macomber, J., concur.  