
    Morris Fogel, an Infant, etc., Plaintiff, v. The Interborough R. T. Co., Defendant.
    (Supreme Court, New York Special Term,
    February, 1907.)
    New trial — Grounds: In general — Conditions developing since trial; Newly-discovered evidence — In general. In an action to recover damages for personal injuries, where the testimony of the experts was conflicting upon the question whether there was a fracture of the spinous processes of the vertebra which might be followed by a permanent paralysis of the lower limbs, and the jury rendered a large verdict for the plaintiff; and where, after appeals to the Appellate Division and to the Court of Appeals, no errors were found to have been committed upon' the trial, but the lapse of time since the trial and the plaintiff's physical condition have shown that the honestly expressed opinions of experts that the injuries would result in "paralysis were not well founded, such" subsequent developments cannot be classed as newly-discovered evidence; but, under the exceptional circumstances of the case, and in furtherance or substantial justice, and in deference to the suggestions contained in the opinion of the Court of Appeals in the present case, a new trial will be granted upon payment by defendant of trial costs and costs on appeal.
    Motion by defendant for a new trial on the ground of newly-discovered evidence in an action by a passenger against a carrier to recover for personal injuriés.
    Kantrówitz & Esberg (Franklin Pierce, of counsel), for plaintiff.
    Charles A. Gardiner (Joseph H. Adams and Frederick S. Randall, of counsel), for defendant.
   Fitzgerald, J.

Upon the trial of an action to recover damages for personal injuries, a verdict of $6,000 in plaintiff’s favor was rendered. Affirmances of the judgment entered upon that verdict have been held at the Appellate Division of this court and in the Court of Appeals. In the opinion filed upon the decision in the Court of Appeals it was said that “the affirmance should be without prejudice to the defendant to move for a new trial upon the ground that paralysis had not occurred.” There was a conflict of evidence upon the trial as to the extent and character of the boy’s injuries. A physician called on behalf of the plaintiff expressed the opinion that he had sustained a fracture of the spinous processes of the vertebra, and that, as a consequence, paralysis of the lower limbs would follow within the period of three years from the date of the injury, June 28, 1903. This was disputed by a physician called by defendant, who testified that, if there had been a fracture of the kind claimed, it had reunited and that no spinal difficulty whatever was to be apprehended. Plaintiff’s physician, upon cross-examination, said that, if paralysis did not appear within three years! then his opinion was it could not thereafter occur as a result of the injury. The doctors upon both sides agreed that paralysis had not at the time of the trial appeared. Upon the conflicting testimony as to future consequences the issue was submitted to the jury. All the rulings of the learned court during the progress of the trial and the instructions given in the charge have been upheld on appeal. If any questions were raised as-to the competency or sufficiency of the evidence to sustain the verdict they have been ultimately determined by the final affirmance. Events subsequent to the trial have, it is claimed, however, conclusively shown that the opinion of plaintiff’s expert was unsound. There is no insinuation of collusion, imposition, deceit or fraud of any kind having been perpetrated by the plaintiff, his witnesses or his attorney. An honest mistake in the expression of a physician’s opinion is the sole ground of this motion. After-developments, refuting an opinion as to future probable results (required to be testified to only with reasonable certainty), cannot be classified as newly-discovered evidence which may be defined as the existence of material facts unknown to the moving party at the time of’the trial, and which reasonable diligence could not have discovered. The well-settled rules governing the disposition of applications for new trials upon the ground of newly-discovered evidence, as set forth in many adjudications, have no application here. Jensen v. Hamburg-Am. Packet Co., 23 App. Div. 163, was a case where subsequent observation tended to prove that plaintiff deliberately and knowingly magnified his injuries. The same is true of Cole v. Fall Brook Coal Co., 40 N. Y. St. Repr. 834. Of a like character are Wood v. Town of Smithfield, 102 N. Y. 288; Nugent v. Metropolitan St. R. Co., 46 App. Div. 105 ; Corley v. N. Y. & H. R. R. Co., 12 id. 409. While the motion cannot be considered upon the ground of newly-discovered evidence, the inherent power of the court may be invoked to grant a new trial in furtherance of sxxbstantial justice. It may well be, as insisted upon by plaintiff’s counsel, that the granting of the motion under the exceptional circumstances may tend to imperil the security of judgments, may lead to interminable delay in arriving at definite determinations in actions, may be productive of multitudinous and exasperating applications for new trials in cases, particularly, where verdicts rest in any degree upon expert evidence as to future resultant conditions reasonably to be apprehended; thus swelling the volume of litigation and largely increasing the labors of the courts. These are weighty and important considerations, but the opinion of the Court of Appeals, concurred in by all the learned judges (185 N. Y. 562), is before me, and while it may not be absolutely binding as a decision it is certainly entitled to the highest respect. The language used, which must have been carefully considered, is plain and unequivocal. “It seems quite clear that the jury awarded damages upon the theory that the plaintiff would suffer from paralysis as the result of his accident.” And, again, alluding to the lapse of time: “That period has now substantially elapsed, and it should be practicable to substitute for opinion and theory actual facts and quite conclusively to demonstrate whether the plaintiff has in fact suffered from paralysis as the result of the accident. Therefore we think that the affirmance of the judgment appealed from should be without prejudice to the right of the defendant, upon proper proofs showing that paralysis has not occurred, to move for a new trial of this action.” A number of affidavits have been submitted by defendant which abundantly establish the fact that paralysis has not occurred, although more than three years have passed since plaintiff received his injuries. Ho depositions have been submitted in opposition, and upon the argument it was frankly admitted by his counsel that plaintiff has not suffered and is not now suffering from paralysis. Motion is, therefore, granted upon payment by defendant of trial costs and costs on appeal.

Motion granted upon payment by defendant of trial costs and costs on appeal.  