
    Maggie Clark, as Administratrix, etc., Resp't, v. New York Central & Hudson River Railroad Company, App'lt.
    
      (Supreme Court, Appellate Division, Third Department,
    
    
      Filed April 14, 1896.)
    
    1. New trial—Newly discovered evidence.
    Upon a motion for a new trial on the ground of newly discovered evidence, the evidence of a'witness who saw the decedent approach the crossing and saw him look and listen at the time of the collision, is not cumulative, where there was practically, on the trial, no evidence on the part of the plaintiff as to the conduct and care of the decedent at the time of the collision.
    S. Same,
    In such case, where such new evidence would probably have produced a different result, to the extent that the case would have been sent to the jury, the discretion of the trial court in granting the new trial will not be disturbed.
    3. Same.
    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.
    Agpeal from an order granting a new trial.
    Ashbel Green and J. D. Wendell, for app’lt; L. F. Fisher, for resp’t.
   MERWIN, J.

— The in this case 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 given sufficient signals of the approach of its trains. Dyer v. Railway Co., 71 N. Y. 228. At the 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- 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 belt 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 timo 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 case. 3 Grab. & W. New Trials, 1104. The 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, though it right to grant a new trial. His discretion should not, I think, be disturbed. In Barrett v. Railroad Co., 45 N. Y. 628, 632, it is said:

v “ 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 oE 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; 63 St. Rep. 484; Homes v. Roper, 32 id. 470 ; Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54; 14 St. Rep. 879. Substantial justice is said to be the main test. Clegg v. Newspaper Union, 51 Hun, 232, 237; 21 St. Rep. 215. 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. Order affirmed, with costs.

All concur.  