
    Byrne, Administratrix, v. Brooklyn City and Newtown Railroad Co.
    (City Court of Brooklyn—General Term,
    December, 1893.)
    In an action for injuries caused by being thrown from the platform of a street car by a jolt caused by a defect in the track, testimony as to the condition of the track on a day subsequent to the accident, and that such condition would produce such a jolt, is admissible where there is evidence that the condition of the track is the same at the time of the trial as on the day of the accident.
    A party seeking a new trial on the ground that a verdict is against the weight of the evidence, must satisfy the court that he has called, or explained the absence of, any witness who could contradict the testimony of the opposing party, when the fact in question would be peculiarly within the knowledge of such absent witness.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by his being thrown from the front platform of one of defendant’s horse cars by a jolt caused by a defect in the track at a curve, and under the front wheeh
    
      Morris & Whitehouse, for plaintiff (respondent).
    
      J. Stuart Ross, for defendant (appellant).
   Clement, Ch. J.

We are of opinion that no error was committed by the learned trial judge in the admission of the testimony of Mr. Byrne as to the condition of the low spot in the outer rail on June 28, 1892. Mr. Stewart testified that the track was in the same condition as on April 25, 1892, the date of the accident. Though he never measured the depression of the rail, yet his testimony is to be construed to mean that the rails were in substantially the same condition on the two days, and that no repairs had been made between the two dates, and none up to the day of trial. Mr. Byrne stated that, on June twenty-eighth, the rail, at about the middle of the curve, was an inch and three-quarters lower than the adjoining one, and that the ends of the rails did not meet by half an inch, and that, if the outer rail was lower than the inner one on a curve, the effect on a car, as it struck such a place on the track, would be to produce a'jolt, which effect was repeatedly noticed by Mr. Stewart in riding over the curve. The testimony of Mr. Stewart was the same as that given by Mr. Byrne, except that he did not measure the depression of the rail. Testimony similar to that given by Mr. Byrne was held to be proper by the Court of Appeals in the case of Wooley v. Grand Street & Newtown R. R. Co., 83 N. Y. 121, 129. Judge Folg-er there says: “ A witness, by plaintiff’s counsel, was asked whether the switch, at the time of the trial, was as high as it was at the time of the accident. This is the ground of an exception. We think it was not error to admit the testimony. How it was at the time of the trial, or at any túne after the accident, might be got at by actual measurement, and there might be, as there was, dispute as to how it was at the time of the mischance. So, testimony that it was to appearance higher or lower at any intervening time was not incompetent, whether of more or less weight.”

We have carefully read the testimony in this case, and conclude that the verdict was not against the weight of evidence. While the statements of one or two witnesses for the plaintiff are open to criticism, and while the case, at first sight, seems weak, yet our conclusion that the verdict should be upheld is greatly strengthened by the fact that the testimony offered by the defense tending to show that the tracks from the time of the accident to the date of trial had not been out of repair, is also weak. Mr. Stewart, as stated before, testified that the track, at the point in question, was in the same condition on the date of trial, ten months after the accident, as on the day it occurred. We must assume that the attorneys for the company were not surprised at the testimony of Mr. Stewart, as they made no such claim on the trial. Three drivers for the defense testify that they noticed no jolt when their cars passed over the curve at or about the time of the accident, though one of them, Reilly, admitted that about two weeks before the trial he did notice that there was something the matter with the track. at the place in question. That the track was out of repair at the date of trial seems not to have been contradicted. When it was first in that condition was a fair question for the jury. We think that it is right to assume that the defendant employs men to inspect its tracks and also has a superintendent of repairs, and that the defense would have been much stronger if the parties employed to perform the duty of insj^ection had been called to testify as. to the date when the track was first discovered to be out of repair. A party seeking a new trial' on the ground that a verdict is against the weight of evidence must satisfy the' court that he has called, or explained the absence of, any witness who could contradict the testimony of the opposing party, when the fact in question would be peculiarly within the knowledge of such absent witness. A weak case for plaintiff is made strong when a witness who could contradict it is not called by the defendant. Schwier v. R. R. Co., 90 N. Y. 558, 564; People v. Hovey, 92 id. 554; Crary v. Crary, 18 N. Y. Supp. 753.

If the jury had the right to find from the evidence that the track was in the condition testified to by Stewart and Byrne, at the date of the accident, it would seem, from a perusal of the case, that the other question, whether or not the deceased was thrown off by the jolt of the car caused by a defective track, was also properly submitted to the jury.

The duty imposed upon a street railroad company to keep its track in repair and in good condition is well settled. It owes such a duty to its passengers (Gray v. Rochester City R. R. Co., 61 Hun, 212), to foot travelers (Schild v. Central Park R. R. Co., 133 N. Y. 446) and to drivers of vehicles. Wooley v. Newtown R. R. Co., 83 N. Y. 121,129.

The judgment and order denying a new trial should be, affirmed, with costs.

Van Wyok, J., concurs.

Judgment and order affirmed, with costs.  