
    Jesse Kring, an Infant, by Lizzie A. Kring, his Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Motion for a new trial for newly-discovered evidence.
    
    In order to justify the granting of a motion for a new trial upon the ground of newly-discovered evidence, it must appear that the evidence has heen discovered since the trial, and could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is not merely cumulative (although the fact that it is cumulative does not necessarily re'quire a denial of the motion), and that it would probably have changed the result.
    In an action to recover damages for personal injuries, the issue involved was whether the plaintiff, a trespasser upon the defendant’s railroad train, sustained the injuries complained of in consequence of being kicked therefrom by the conductor, or while he was attempting to jump from the train of his own volition. The plaintiff and two disinterested witnesses testified in support of ■ his contention that he was kicked, while the conductor and three other disinterested witnesses testified in support of the defendant’s contention that he ■ jumped from the train. The jury found in favor of the plaintiff.
    
      Meld, that :a motion made by the defendant for a new trial upon the ground of newly-discovered evidence, based Upon the affidavit of three witnesses, whose failure to appear at the trial was properly accounted for, to the effect that the plaintiff jumped from the car of his own volition, should be granted.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of April, 1899, upon the verdict of a jury for $8,000 ; also from an order entered in said clerk’s office on the 10th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 10th day of May, 1899, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.
    
      L. B. Williams, for the appellant.
    
      M. E. Driscoll, for the respondent.
   McLennan, J.:

The action was commenced on the 1.3th day of September, 1898, to recover damages sustained by the plaintiff, alleged to have been caused by the negligence of the defendant.

On the 13th day of November, 1898, between five and six o’clock on the afternoon of that day, the plaintiff, who was then about eleven years of age, boarded a train of the defendant known as the -De Witt Special, as it was passing through the eastern part of the -■city of Syracuse. It is conceded that the plaintiff was a trespasser '•«upon the train, boarded it without right or authority, and solely for -the purpose of amusement. The plaintiff got upon the. train by ‘Catching hold of the railing at the forward end of the rear car, and '■swinging himself up on to the steps leading to the front platform. tH-e stood upon the steps, facing to the south, and in that way rode a short distance and until, as he says, he was kicked from the platform by the conductor, fell to the ground and the wheels of the rear truck passed over his leg, which made amputation necessary. ■

The plaintiff, who was sworn as a witness in his own behalf, testified in substance that he saw the conductor come out of the rear car on to the front platform where he, the plaintiff, was riding upon the steps, and that as he turned around preparing to jump from the car the conductor, without warning and without even speaking to him., kicked him in the back and threw him to the ground, and in such,manner as to cause his leg to go under the wheels of the car.

Robert L. Wells also testified on behalf of the plaintiff. He stated in substance that he s.aw the plaintiff standing on the steps as ■described by him; that he saw the conductor come out of the car -and kick the plaintiff; saw him fall to the ground, and saw him after "the wheels of the car had passed over his leg. The conductor’s name is James Coogan, and at the time of.the trial, and while Wells ■was giving his testimony, he was asked to point out the person who Licked the plaintiff. He picked out and identified James Weaver, witness for the defendant, as the man, although Coogan, the con-ductor, was at the time present in court, and sitting near the witness. ......

Philip Van Alstyne, a boy thirteen years of age, testified that he saw the conductor make a kick at the plaintiff, and that he saw the. plaintiff fall. . ■

The foregoing is substantially all the evidence given by theplain4iff upon the trial bearing upon the disputed questions of fact.'

The defendant by its-answer and also upon .the trial took the position that neither its- conductor nor any - other- of its employees kicked the plaintiff, or in any way -interfered with him. In fact, that they did not know he was upon the train, or that he had sustained any injury until after the accident.

To support its contention the defendant called as a witness James Weaver, the man who was identified as the conductor by plaintiff’s witness Wells. He testified that he was standing upon the south ■side of the front platform of the rear car, riding from Syracuse to his home in Be Wittthat while he was there he saw the plaintiff get upon the car from the north side immediately opposite him 5 ' that he, the witness, told the plaintiff that he was in danger of falling and getting hurt; that the plaintiff thereupon jumped from the car voluntarily and without interference on the part of anybody, and received the injury complained of. The witness testified positively that the conductor was not present, nor any other employee of the defendant; that no one interfered with the plaintiff, but that he left the place where he was standing of his own volition.

William IT. Brookings testified that he was sitting in a -seat at the front end of the car, and in full view of the platform in question ;- that he saw the plaintiff and the witness Weaver both upon the platform, and he states positively that when the boy got off the conductor was not present; that the boy was not kicked at all, or interfered with by any one, but that he jumped off the train of his own accord.

The conductor, James Ooogan, testified that he did not know the plaintiff was upon the train : did not see him upon the platform at all; that he did not kick him or interfere with him in any way, and that he- was in another car attending to his duties as conductor at the time of the accident,' and learned of it only through information given him by his trainman. ■ •

George Suiter, the trainman, also testified that when the plaintiff fell the conductor was in another car; was not upon the platform where the plaintiff was, and that he, the witness, informed the conductor of the accident, going to another car for the purpose, where he found the conductor in the discharge of his duties.

It will be seen that a sharp, question of fact was.presented by the evidence! The plaintiff, who was interested, and two other disinterested.' witnesses, gave evidence tending to support the plaintiff’s contention that he was kicked from the car by. the defendant’s conductor, and in such manner as to cause the injury sustained by him.. The conductor, who may be said to be interested, an’d three other-disinterested witnesses, gave evidence flatly contradicting the evidence of the plaintiff and his witnesses.

The question of fact thus, raised was properly submitted to the-jury by the learned trial justice, and a verdict of $8,000 was rendered in favor of the plaintiff. ' Our attention has not been called to any ruling made upon the trial which would require a reversal, of the judgment.

The serious question is presented by the appeal from the order denying defendant’s motion for a new trial upon the ground of néwly-discovered evidence. Upon such motion the defendant presented the affidavit of one Georgia Curtis, in which she states that, she saw the accident; that she saw the plaintiff fall from the car ;; that no one kicked or touched him ; that when the ear passed over his limb she immediately went to him; that the plaintiff said to her, “ I went to jump off and caught my foot.”' In another affidavit she-, states that she did not make known the facts stated by her, before the trial, because she did not wish to ■ be drawn into a lawsuit, and did not want to go into court; that for that reason she agreed with another affiant, Nellie Harris, to say nothing about the transaction.

Nellie Harris, in her affidavit, states positively that she saw the accident; saw the plaintiff fall from the train; that he jumped from, the car of his own volition; that no one was upon the platform with him ; that no one kicked or touched him. The affiant also, states that she did not say anything about the accident until a. short time before the. affidavit was made, and that she had agreed with Georgia. ■Curtis not to say anything about it.

The affidavit of Nelson Meniseec was also, presented, in which he states that he saw the accident; that-the boy jumped from the train of liis.own volition-; that no one pushed or touched him;, that the conductor was not on the platform or. steps at all when the boy fell.

The affidavits of Dix H. Rowland, an attorney: Who was in the employ of defendant’s attorneys prior to and at the time of the-trial, and of Alexander H. Cowie, one of defendant’s attorneys,, show conclusively that in preparing for the -trial they had no means-of knowing, or reason to suspect, that the persons who ;nade the foregoing affidavits knew anything about the accident, or could give evidence relevant to the issues involved; that they made diligent inquiry among the people who resided in the vicinity. of the place; where the accident happened, to ascertain all the facts connected, therewith, as .soon, as,they were retained to .defend the action, and that they had no knowledge that the persons above'referred to knew anything about the same.

In opposition to the affidavits presented on behalf of the defendant, the plaintiff presented a large number of affidavits, some of' them to the effect that after the plaintiff’s leg was run over he was-unconscious, and could not have made the statement testified to by Georgia Curtis, and others stating, in substance, that Nellie Harris, and Nelson Meniseec were not in a position to see the accident or the plaintiff .when he fell from the car, and that neither of those three persons went near the boy as he lay upon thé ground, as stated by them in their affidavits.

The plaintiff also presented affidavits to the effect that the reputation of Georgia Curtis-and .Nellie Harris for truth and veracity was bad. Plaintiffs affidavits are not of such a character as to be convincing of their truthfulness, but, on the contrary, there are some indications that the affiants are mistaken in respect to some of' their statements. The same may be said of the affidavits presented by the defendant.

It is apparent that the evidence of the three persons whose affidavits were presented by appellant’s counsel in support of the motion for a new trial, if believed, would have an important bearing upon the' determination of the issues involved in this" case, and there is no-such inherent improbability in the evidence as to enable us to say that it would not be believed.

Robert L. Wells, the witness called by'the plaintiff, appears to be a roving character, without steady employment, apparently of not-very good reputation, and this, taken in connection with the fact that hn-identified a person other than the conductor as the person \yho. kicked tlié: plain tiff, from’thé' train, greatly weakens his'-testL inony. Hpon the trial the plaintiff’s claim depended entirely upon the evidence of this witness, the plaintiff and the little boy, Philip Van Alstyne.

On- the part of the defendant the conductor, who had been in that position -for more -than, twenty yearsp testifies positively that he in no manner interfered ■ with the -plaintiff •; did not know he was. upon the train,-and he is corroborated by three-other witnesses who, if they are to be believed, had ample opportunity to know what the' facts were in-the'case. ¡ .....: . .

Under those circumstances it would seem-that it may-fairly be-said that the new evidencie • is such that, if given and- believed; it would probably ha ve changed the result of the trial, and that-, ■therefore the ends of justice will be -promoted-by allowing the defendant to present-such evidence upon another trial.

The rule -which shfiuld- govern in considering.,a ..motion- of this kind is well settled.: It must appear that the’ evidence has been discovered since the trial-that it could not have been obtained upon the former trial by' the exercise of reasonable diligence ; that it is material to the issue and goes to the merits of • the cash ; that it is not merely cumulative, and that its-character-is such that it would probably have changed the • result. (People v. Holmes, 32 App. Div. 148; Glassford v. Lewis, 82 Hun, 46; Roberts v. Johnstown Bank, 38 N. Y. St. Repr. 563.)

That the newly-discoveréd evidence is cumulative does not necessarily afford groundMor- denying - the piotion for a ■ new trial. (Keister v. Rankin, 34 App. Div. 288; Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54.)

The' rule which should ¡control Upon a motion- of..-this character-is laid down in Vollkommer v. Nassau Electric Railroad Co. (23 App. Div. 88). The facts of that case are "analogous to the facts in the cáse at bar. ■ After reciting the facts, the court says : <( The general principle, which should govern courts in disposing of applications of the character of the one n'ow before us is well stated by Judge Allen in Barrett v. The Third Avenue R. R. Co. (45 N. Y. 628): ‘ Motions to set aside verdicts as contrary to-evidence, as wéll 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 hasbéen done, the court having in view solely the attainment of that'..end.’ In this case we. can .only say that considering its particular circumstances, the closeness of the issue and the uncertainty of correctness in’ the determination of that issue, we are of opinion that justice requires that the defendant should have an opportunity to again present the case, with the new evidence that -has been brought to light.” (People v. Glasgow, 52 N. Y. Supp. 24.)

In the case at bar the issues are within narrow limits'. It can hardly be said that the weight of evidence is with the plaintiff. The facts as related by him and his witnesses are extraordinary, to say the least. They show a degree of brutality and recklessness on the part of the conductor which challenges our belief.

Considering all the circumstances, we are of the opinion that the order denying .defendant’s motion for a new trial upon the ground of newly-discovered evidence should be reversed and a new trial granted, but upon condition that the defendant pay the costs of the action after the service of the answer, and the costs of this appeal, within twenty days.

All concurred.

Order denying motion for a new trial on newly-discovered evidence reversed, and motion for a new trial granted, on condition that the appellant pay the costs .of the. action after the service of the answer, and the costs of this appeal, within twenty days, in which event the verdict, judgment and order denying motion on the minutes are vacated; otherwise, the judgment and orders are affirmed, with costs.  