
    James Gnecco, Respondent, v. Hans P. Pedersen, Appellant.
    Second Department,
    December 31, 1914.
    N"egligence—motor vehicles — injury by automobile — third trial of action — when new trial will be granted.
    Where upon each of two trials of an action to recover for personal injuries, sustained by being struck by an automobile owned and operated by the defendant, the judgment in plaintiff’s favor was reversed as against the weight of evidence, and upon the third trial the evidence offered by plaintiff in some respects is weaker than on the previous trials because of more serious contradictions therein, and the evidence on behalf of defendant is equally strong, and defendant’s motion for a new trial on the minutes is denied, the judgment in plaintiff’s favor will be reversed and a new trial granted.
    Thomas and Rich, JJ., dissented.
    Appeal by the defendant, Hans P. Pedersen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of June, 1914, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 13th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      
      William G. Johnson, for the appellant.
    
      George F. Hickey [M. P. O’Connor with him on the brief], for the respondent.
   Burr, J.:

This case comes before us for the third time. Upon the first appeal a judgment in favor of the plaintiff was set aside as being against the clear weight of the evidence. (Gnecco v. Pedersen, 155 App. Div. 914.) Upon a new trial plaintiff again recovered a verdict. That was, upon the same ground, set aside. (Gnecco v. Pedersen, 160 App. Div. 904.)

There is substantially no difference, so far as the evidence offered by the plaintiff is concerned, from that considered upon the previous trials. In some respects it is weaker, because of more serious contradictions therein. The evidence in behalf of the defendant is equally strong. Notwithstanding the great respect that should be given to the verdict of a jury* upon a question of fact, particularly where the trial judge declines to interfere, we cannot feel that we are doing our duty if we allow this judgment to stand. Upon neither of the previous appeals was any opinion written. Because we feel constrained to reverse a judgment in plaintiff’s favor for the third time, it may not be amiss to analyze the evidence and point out the weakness of plaintiff’s case.

Plaintiff, an old man, walking along a road in Queens county, in the former town of Flushing, known as Queens road or Queens avenue, was struck by an automobile owned and operated by defendant, and sustained severe injuries. The accident happened on March 27,1910. Queens road, or avenue, runs east and west. On the south is a cemetery, known as Flushing cemetery. The center of the roadway was then covered with macadam. Now it is covered with asphalt. The improved portion of the road was then about sixteen feet wide. On either side of this, grass had been permitted to grow; and there is evidence on the part of the plaintiff that, on the north side of the road, a path had been worn through its frequent use by pedestrians. Plaintiff, according to his testimony, was passing along this path, between two and three oclock in the afternoon, and was walking in a westerly direction. The eviden.ce of •defendant’s witnesses is to the effect that he was walking in the roadway itself. For the purposes of this decision we may accept plaintiff’s testimony upon this point. Defendant’s automobile was coming from the opposite direction, traveling east. Some of the witnesses for the plaintiff testified that it was going pretty fast.” The great weight of evidence, on the part of the witnesses for the defendant, is that at this point the road was upgrade, that the car was a small Ford car and that it was not going more than five or six miles an hour. The fact that it stopped within about ten feet would indicate that it was not proceeding at an unlawful rate of speed. Just before the car reached a point in the road opposite to the path on which plaintiff was traveling, it suddenly swerved to the left and struck him. This, unexplained, might justify a finding, of negligence in the operation of the car. Defendant’s explanation is, that just at that moment two dogs had been playing in the road, to the right of the automobile or on the south side of the road, and that suddenly one of them dashed across the road immediately in front of the car; that the left front wheel of the car struck the hindquarters of the dog; that he was knocked down and passed under the body of the car, although not under its wheels, and that this sudden collision deflected the car and caused it to swerve. If this is true, we cannot see how defendant’s negligence was established.

After calling a witness to show distances and locations, defendant himself took the stand, and stated that he had been operating a car for three or four years; that the car which he was operating on this day was a Ford car, with a seat for two passengers in front and a rumble in the rear. Gottlieb Knoedler was in the car with him. About fifty feet in the rear of this car there was another automobile, proceeding in the same direction, operated by John Schock. This was a five-passenger car, and in the car with Hr. Schock were Mrs. Pedersen, Mrs. Knoedler, his wife and his daughter. Defendant testified that after the collision the car stopped within four or five feet, and that after the accident, so far as he observed, the dogs disappeared. His testimony as to the manner of the happening of the accident is corroborated by Gottlieb Knoedler, Nellie Knoedler, John Schock and, to some extent, by his wife, Barbara Schock. The defendant also called as a witness Annie Engel, who testified that, after the accident and after a crowd had gathered, and while plaintiff was being assisted to his daughter’s residence, she saw a dog following plaintiff, which she recognized as one belonging to his daughter. William H. Wooster, who was also operating an automobile on the same road, testified that as he came up shortly after the accident he saw defendant’s car in a diagonal position across the road, and “it seemed as if it had just about come to a stop, and immediately back of it was a dog.” William Sugden also testified as to the presence of a dog on that occasion. This comprises substantially the testimony by the defendant as to the presence of the dogs and the cause of the accident. Outside of the testimony of the plaintiff, which was to the effect that he had no dogs with him and that he saw no dogs on that occasion, only one witness was called by the plaintiff, who from her position might testify as to the presence or absence of the dogs. Her testimony will be considered later. Three witnesses were called by plaintiff: Madeline Walter, who, at the time of the accident, was about twelve years old; Ethel Eelcher, about the same age, and Jessie Loffink, who was eleven years old at the time of the accident.' It is conceded that this accident happened about where Twenty-fifth street would, if continued, cross the Queens road, intersecting the same. From Twentieth street up the streets terminate on the north side of this road. These three girls were at the cemetery entrance, which is at Twenty-second street. There is evidence on the part of defendant, not contradicted, that this is about 600 feet from the place of the accident. Madeline Walter testified that she saw the automobile, operated by defendant, pass her at the cemetery gate, and that she did not notice it again until she saw it standing still after the accident. She did not see it strike plaintiff. She téstified that she saw no dogs, but it is perfectly evident that this negative testimony is of no avail, for her attention was not directed, even, to the scene of the accident until after it occurred. Ethel Felcher was with the last witness, and she testified that they stopped and let the automobile pass; she says that she did not see the accident, but that afterward they saw the people gathering and all the girls that were with her ran up, and plaintiff had then been assisted to his feet. She testified that she did not see any dogs on that occasion, but her testimony is equally valueless because, not only was her attention not directed to the scene of the accident at the time of its occurrence, but she did not even notice that there was a second automobile there when she first arrived at the place where Mr. Gnecco was injured. Jessie Loffink, the third of the girls, testified in like manner that they came out of the gate at Twenty-second street together; that the automobile passed them and she did not see it again until after the accident. She also testified that she saw no dogs; but she also testified that she did not see the other automobile when she first arrived at the place of the accident. Celia Vondinsky testified that she was walking west, in the same direction as Gnecco, on the south side of the road. On the previous trial she testified that defendant’s automobile had passed her, and her back was to it when the accident happened. She hedges a little on this trial by saying that plaintiff was on the other side of the street from her, about three inches or six inches behind her. She also testified that she saw no dogs; but she also testifies that no other automobile was there when the accident happened. Such testimony is at the best of a negative character, given by persons who were not in a position to see the "occurrence, and whose attention was not called to the same. It is of no weight as against the affirmative evidence of the adult witnesses called by defendant, some of whom were disinterested, as to the presence of the dogs, and that collision of the car with one of the dogs caused the accident. Lawrence Meegan was a new witness called by the plaintiff, although it appeared that he was in court on the previous trial. He did not arrive at the scene of the accident until Rose Uoxon, a witness whose testimony is afterward considered, was binding up Gnecco’s arm. His testimony that he saw no dogs on that occasion is for this reason of no value. This witness also testified to the alleged admission by the defendant that he had lost control of the machine. Testimony of such a character is always suspicious. Defendant might have lost control of the machine through the conduct of the dogs, as be doubtless did. Meegan testified upon this point: “ I heard the old man [that is, the plaintiff] say to Mr. Pedersen, you tried to kill an old man, and he said, ‘ no, I didn’t try to do it intentionally, I lost control of my machine. ’ ” William E. Waddell, a police officer, testified that after the accident Pedersen said that he struck an obstacle in the road. His testimony is vague and indefinite. He thought that defendant said he struck a stone, but he was not positive about this; but he did say he did not recollect Pedersen saying anything about the dog. Theresa Shire, a daughter of the plaintiff, also testified to an alleged admission by defendant. After her father had been brought home and was lying on the lounge she testifies that he said to defendant, “ You did do it, and you done it intentionally,” and defendant said, “No, old man, I didn’t mean it. * * * I did it, but I have no account of how I did do it, and I couldn’t account for it.” Although she was examined as a witness on the previous trial, she admitted that she said nothing about this alleged statement of the defendant on that occasion. Henry Shire, the husband of the last witness and son-in-law of the plaintiff, testified that, in the house, plaintiff “ accused Mr. Pedersen of intentedly running over him, and Mr. Pedersen said no, I am to blame for the accident, but I can’t account for how it occurred,’ but he said, I didn’t do it intendedly.’ ” It also appeared that, although he was present on the previous trial, he did not testify, and testimony of such a character, given under such circumstances, is of little, if any, probative value. One other witness, Eose Noxon, was called on behalf of plaintiff. She was perhaps in a position where she could see what went on, and she did testify that she did not see any dogs before the accident. But she also testified that she did not notice the other automobile until after she had been over to the place where plaintiff was lying and had bound up his arm and they were about to go away to plaintiff’s daughter’s house. Apparently at the tíme of the accident she was only eleven years old, although she seemed to be somewhat confused even as to her age. There were also contradictions in her testimony as to the exact place where she was before the accident. She first said she was placing plants upon her grandmother’s grave, then that she was placing these plants upon her great-grandmother’s grave, which was between Twenty-fourth and Twenty-fifth streets and about three yards from the fence. Her grandmother’s grave was opposite Twenty-third street, and this must have been nearly, if not quite, 400 feet from the scene of the accident. She testified that when she saw the plaintiff struck down she jumped over the fence, which she admitted was 4% feet high. She did not know and could not tell whether there was also a hedge there or not. The only evidence on the part of the plaintiff as to the presence of the dogs which might be of any value is that of this last witness. Her whole testimony, when read together—perhaps because of her age, perhaps because of her embarrassment in the court room or perhaps for other reasons — was unconvincing, contradictory and not to be relied upon. It certainly does not seem to me to be sufficient to sustain a verdict in favor of the plaintiff against the strong evidence offered by the defendant.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., and Stapleton, J., concurred; Thomas and Rich, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  