
    Nicholas A. Butez, by Guardian, Plaintiff, v. The Fonda, Johnstown & Gloversville Railroad Co., Defendant.
    (Supreme Court, Fulton Trial Term,
    April, 1897.)
    Hew trial — Improper evidence tending to create prejudice.
    Where the direct tendency of the exhibition of an injured foot was to arouse the prejudices and inflame the passions of the jury against the defendant, such exhibition requires a new trial upon a verdict' against the defendant.
    Motion for a new trial.
    
      J. N. Gardner and J. Keck, for plaintiff.
    Baker & Burton, for defendant.
   Russell; J.

This motion for a new trial will be disposed of by the consideration of one of the grounds upon which a' new trial is asked. The plaintiff is a child, four years of age, who sustained, a-year and five months before the trial, an injury to his leg, with some other bruises, by being hit by a motor car propelled by electricity on the defendant’s railroad on one of the public streets of the city of Johnstown. He recovered a verdict for $2,000 as compensation for the injuries alleged to have been sustained by thé defendant’s negligence. On the trial, during the examination of Dr. Walrad, produced as a witness by the plaintiff, an exhibition of the child’s leg was offered by plaintiff’s counsel to be made to the jury.' This was objected to by the defendant’s counsel and, during ■ the discussion which ensued, - remarks were made by counsel.for the defendant and the court as to the risk attending such an exhibition, and its likelihood of being accompanied by scenes which might affect a jury of humane, even though sensible, men. In the view of the court, at that time, and now, such an offer could not be refused by the court in the absence of any exact prophetic knowledge of the action of the child itself. It was deemed then, and is now, competent to exhibit an injured member to a jury which is to pass upon the gravity as well as the method of the infliction of the injury even though there has been a lapse of time which has changed to some extent the condition of the injured member, it being assumed that such change would be taken into consideration by a jury in determining the probable cause or permanence of the effect of the injury itself. If such an accident comes to a person of mature years the exhibition of the injured member is likely to be made with a power of self-control ón the part of the person affected, which will render it as. little likely to inflame the passions or influence the sentiment as the production of any other physical evidence. There are also children who from . phlegmatic temper of natural fearlessness will stand such an ordeal with composure.

But in the present instance- the child seated in. its father’s lap in the witness chair began, upon the removal of a part-of its clothes and the exposure of the limb, a terrified crying which added seriously to the affecting nature of the exhibition. He was removed by order of the court once repeated. The judge presiding at the time thought that his first direction was unheard by the father who was attempting to pacify the child.

I am satisfied that the scene, as it actually took place, was calculated to produce emotions on the part of the jury, possibly swaying their judgment to tendereness for the child and likely to affect their judgment on doubtful questions in hi's favor. . Of all this the plaintiff took the risk in persisting in the request to have the leg exhibited, and, if the result produced an occasion interfering with the proper incidents of the- trial, the responsibility must, to some extent, rest upon the plaintiff — so- far, at least, as to compel him to stand the burden of another trial which may be free from all disturbing elements.

A motion for a new trial, which is addressed to the discretion of the court and does not rest upon legal exceptions, is governed by no settled principles of law, except the general one that substantial justice is to be reached. Platt v. Munroe (Gen. T., Fifth Department, Allen, J.), 34 Barb. 291; Chamberlain V. Lindsay, 1 Hun, 231, 236 (Gen. T., First Department, Daniels, J.); Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632.

"Where the direct tendency of the exhibition of an injured foot was to arouse the prejudices and inflame the passions of the jury against the defendant, such exhibition requires a new trial upon a verdict against the defendant. Rost v. Brooklyn Heights R. R. Co., 10 App. Div. 477. See, also, Corley v. N. Y. & Harlem R, R. Co., 12 App. Div. 409.

The motion for a new trial is granted, with costs, to either party to abide the event

Motion granted, with costs to abide event.  