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App. Div.) Second Department, October, 1911. and with such a degree of persistence and brutality that it could have only the one purpose of precipitating the plaintiff to the track between these moving cars, and this story is so at variance with the usual conduct of men, so out of harmony with the experiences of mankind, that the evidence in its support ought to be of the most unquestioned character in order to carry conviction. Nothing much short of evidence which would fairly justify the conviction of the conductor of an assault in the first degree (Penal Law, § 240) ought to prevail as against the defendant in this case, for its liability must depend upon the commission of this crime by its servant in the performance of his general duty of caring for the train under his charge. This story is told by the plaintiff himself, by one Curtin, his companion, who was likewise engaged in stealing a ride, by one Boyd, who described himself as being employed by a private detective agency to shadow people in actions for divorce and matters of that kind, and to some extent these are corroborated by witnesses originally called by the defendant, and subsequently put upon the stand in rebuttal by the plaintiff, and these witnesses appear to have been very carefully interviewed by the plaintiff's attorneys, though not called until after the defendant had been led to believe they would not be called by the plaintiff. It is rather remarkable that two witnesses should be called by both sides; particularly that the plaintiff should not have called them in making his case, though prompt to do so upon the rebuttal, and that their testimony should fit into the plaintiff's theory.

On the other hand, the theory presented by the defendant is entirely consistent with the every-day observations of intelligent men. It does not impose any undue burden upon our credu lity; it does not call for any presumption of crime or cruel or unusual conduct on the part of any one, except in so far as it is a crime for individuals unconnected with the railroad to trespass upon the cars of the company. No man who has had occasion to be in the presence of an operating railroad has failed to observe the almost hourly trespasses of boys and young men upon freight trains, and many of them have witnessed accidents of almost identical circumstance with that described by the defendant's witnesses, some of them abso.

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Second Department, October, 1911.

[Vol. 146. lutely disinterested, and whose credibility is in nowise impeached. The story is told simply by one Samuel Lundquist, an employee of an extensive manufacturer of metallic doors and interior finishings, known as the Dahlstrom Metallic Door Company, who says that he was in the vicinity of the railroad track at One Hundred and Twenty-ninth street and saw the accident; that his wife was with him at the time; that they had come down to the river to watch the fishermen, or rather that they were on their way there; that the train came along just as they came to the crossing of One Hundred and Twentyninth street; that the train in passing was running at the rate of twelve or fifteen miles an hour; that he noticed one boy get on the front part of the train, and that he saw the plaintiff running alongside of the train; that the plaintiff was apparently waiting to catch the handle bar and a smaller boy ran in ahead of him; that the two boys collided; that the plaintiff fell down and his feet went under the wheels; that the other boy ran away; that the witness ran over and got hold of the plaintiff's shoulders to keep him. from going under the train; that he held him there until the train passed, and another man came from the other side of the train and helped to carry the plaintiff to Riverside Drive Park, where he stayed until the ambulance came; that the first boy got ou at the front of the train and the accident happened about one-third of the way down the train; that the other two boys, the plaintiff and the small boy, were running, the small one in front; that the plaintiff was running looking back at the train; that he was running in the same direction as the train, looking back over his shoulder, and that he then came in collision with the small boy. Lundquist's wife corroborates him in this story. She says she noticed several boys; that they were running toward the train; the other boys left and two boys were attempting to board the train; the boy that was injured ran across the tracks in the same direction as the train, looking towards the back of the train, and the other boy ran across the tracks and started in ahead of the boy; the plaintiff overtook the boy, and they collided; the smaller boy had knickerbockers on; the Carmody boy, the plaintiff, stumbled over this boy and his feet went right under the train;

App. Div.] Second Department, October, 1911. his feet went under the wheels, and the first wheel of the last truck went over him; then he jerked his feet from under the train. As summarized in appellant's brief: “I ran down to help carry the boy, my husband took hold of his shoulders, I took my husband's cane and ran across the track, there was an old man standing there smoking a pipe, I asked him to go over and help my husband carry the boy and he didn't say a word. I then went back to the accident and some men from the other side came and helped my husband.” This testimony was not shaken in the least upon cross-examination, though the plaintiff's counsel attempts to make much of the fact, admitted by the witness Lundquist, that some time during the past three years the Dahlstrom Metallic Door Company, his employer, had sold some metal furniture to the New York Central Railroad Company, the amount being about $100,000, and that the witness had stated in a general way that he wanted to protect the defendant against this action. Why not desire to defend the defendant against this action, if the facts are as he states them? Why should any honest man have any other desire, if the plaintiff was injured in the manner stated ? This witness says that he told plaintiff's attorney these facts, substantially as he stated them in court, and offered to convince the attorney that he had no cause of action against the defendant, if the attorney would accompany him to the scene of the accident, and that the attorney subsequently went with him to the place, and that photographs were taken. The attorney did not dispute this, though present in court upon the trial, and there was an abundance of opportunity, knowing the truth, to fix up a case in partial harmony with the facts, and at the same time bring the case within the rule of liability. Someone has certainly committed perjury in this case.

Either the plaintiff and his witnesses have testified to an absolute falsehood in reference to the conduct of the defendant's servant, or Mr. and Mrs. Lundquist, with no legal interest in the controversy, have perjured themselves in an effort to protect a corporation, in which they have no interest, against this most unfortunate young man. Nothing in the trial tends to show them to be unworthy of belief, or to have any motive in the matter other than to do their plain duty and

Second Department, October, 1911.

[Vol. 146. to tell the story of the accident as they saw it. They tell the simple story of an act which is familiar to all of us; one which is in accord with our common experiences, and which does not involve the incredible brutality of a single human being; one which is so likely to happen that we scarcely pause to comment when the story is told, and if the case presented no other testimony, it would be difficult to conclude that these people, walking down to the river for the innocent purpose of watching the fishermen, could be induced to commit a crime, where no evidence whatever is given to show that there was any inducement therefor. People do not, as a rule, commit perjury for the sake of wronging an unfortunate brother, where there is no greater inducement than the fact that a corporation has in the past purchased a bill of goods of the witness' employer, while many reasonably honest people have been known to color their testimony, not to call it by a harsher name, out of sympathy for the injured one.

But in addition to the testimony of Mr. and Mrs. Lundquist, which is corroborated in many of the incidents by witnesses called by the plaintiff, the conceded facts in connection with the accident are so inconsistent with the story told by the plaintiff and his witnesses that we cannot help believing that the jury must have failed in the discharge of its duty to weigh the evidence. All of the witnesses who pretend to have any recollection about the matter agree that the train stopped within 200 feet of the crossing of One Hundred and Twenty-ninth street, where the accident occurred. The defendant's engineer testified that the train came to a stop without any action on his part, through the operation of the air brakes. The defendant's head brakeman, who was upon the engine, testified to the same effect, and so did the fireman. So we have two facts, which are not disputed by evidence; one that the train stopped near the crossing, the other that this came from the operation of the air brakes apart from any action on the part of the defendant's engineer. Then we have the testimony of the defendant's conductor that he handed off a bill of lading from the caboose of the train, forty-one cars long, as he passed One Hundred and Thirty-sixth street, and that he did this is not disputed, and that he then went to the cupola of the caboose at the rear of

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App. Div.] Second Department, October, 1911. the train and took his position there to watch over the train, as was his duty, and that as the caboose passed over One Hundred and Twenty-ninth street he heard somebody “holler” and that he felt that something was wrong, and that he reached for the air-brake valve to stop the train, and that, as he did so, the rear brakeman, whose place of duty was likewise in the cupola, reached for the same valve, and that the two of them, acting simultaneously, operated the valve and stopped the train. The rear brakeman testifies to the same state of facts, only he says that the “holler” was rather more definite; that he heard some one crying that a man had been hurt, or something to that effect, as he grabbed for the valve lever, and this the learned trial justice suggests is absurd and unreasonable. But it is hardly remarkable that the witness should have thought he heard this cry. He may have heard it, or it may have been the impression the cry made upon his mind, or the exact words he uses may have been uttered so near to the time of his action that he confused it with the act, or the cause of the act. A cry of pain is usually distinct; someone has aptly said that "no one ever cries 'fire!' in the wrong tone of voice,' and with such a cry in his ears the rear brakeman probably did not stop to distinguish words, but reached instinctively for the air-brake valve, and the mere fact that he formulated the cry differently from what would suggest itself to the mind of a trial justice does not tend materially to weaken his testimony as to the material fact that both the witness and the defendant's conductor were present in the cupola of the caboose at the moment of the accident, that the train was stopped by the joint action of the conductor and the witness, in full harmony with the testimony of the defendant's engineer, head brakeman and the fireman that the train was stopped by the air brakes operated elsewhere than in the engine. Moreover, the evidence is undisputed that the rules of the railroad did not require the conductor to keep watch to prevent trespassers upon the train, except when the train was standing still; that the rules required the trainmen to keep off the tops of the cars, as there was no duty calling them there while the train was in transit, and there was danger from low bridges. Add to this the fact that it was undisputed that the conductor was upon the caboose

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