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Second Department, October, 1911.

[Vol. 146. as the train passed One Hundred and Thirty-sixth street; that the train was forty-one cars in length; seven gondola or low cars being sprinkled through the train, and each car varying in length from thirty-six to forty feet, it will be seen how impossible it would have been for the conductor to reach the point testified to while this train running at the rate of twelve or fifteen miles an hour was running seven blocks. It may be doubted whether this would be possible if all the cars were of the same height, but when it is known that there were seven low cars interspersed between the high cars, thus necessitating climbing at intervals, the story becomes absurd, for the plaintiff's testimony is to the effect that the assault occurred at the rear end of the third car from the engine, or about 1,440 feet from the caboose. In other words, the defendant's conductor, in the natural and ordinary discharge of his duties, would be doing just what he says he was doing; he would be delivering the way bill at One Hundred and Thirty-sixth street and taking his place in the cupola of the caboose while the train was running to its next stopping place at Seventy-second street, and every member of the train crew testifies in harmony with this situation, and the only conflict in the evidence makes it impossible for the conductor to discharge his duty of handing off the way bill at One Hundred and Thirty-sixth street - and that he did this is undisputed - and takes him over at least thirtyeight cars, some of them far below the others in height, and where no duty called him, and compels him to commit a crime of almost unparallelled brutality, that the plaintiff may succeed in this action. If this is sustaining the burden of proof, then we are unable to appreciate the elements that go to make up weight in evidence. While it can hardly be said that the positive evidence of all the operatives of the train on the day in question stands uncontradicted and unquestioned, and must, therefore, be accepted as true; that the jury could not reject it on the ground that they were in the employ of the defendant, as was held in the case of Johnson v. N. Y. C. & H. R. R. R. Co. (173 N. Y. 79, 83), we do feel that the conceded circumstances surrounding the accident are so in harmony with the testimony of the defendant's employees, who had no legal or pecuniary interest in the controversy (Johnson v. N. Y.

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App. Div.] Second Department, October, 1911. C. & H. R. R. R. Co., supra), that the evidence offered in support of the plaintiff's claim cannot be fairly said to preponderate in favor of the latter; that it was of that substantial and trustworthy character which should permit it to prevail over the unimpeached testimony of absolutely disinterested witnesses. The plaintiff and his witnesses testify to a highly improbable story; to an exhibition of brutality rarely equalled in civilized communities, in which the principal actor is called upon to traverse nearly the whole length of a long freight train, where no duty called him, in an impossible length of time, if we assume the truth of his uncontradicted testimony that he was upon the caboose and delivered a paper from the moving train at One Hundred and Thirty-sixth street; and the witnesses in support of this proposition are the plaintiff's lawless companion in the trespass, an employee of a private detective agency engaged in securing divorce evidence, a lifesaving station employee, who might easily be mistaken in reference to the facts which he details, and a former employee of the defendant, who was either false to his employers at the time of the accident or is false now in the testimony which he gives. Opposed to this testimony is the highly probable story of Mr. and Mrs. Lundquist, that the plaintiff was tripped by coming in contact with another boy while engaged in an effort to board the train while it was going at the rate of twelve to fifteen miles per hour, and their testimony is entirely in harmony with that of the entire train crew as to the location of the conductor at the time of the accident. The verdict is against the clear weight of evidence, and the defendant's motion to set aside the verdict should have been granted.

It does not seem necessary to discuss particularly the defendant's motion for a new trial on the ground of newly-discovered evidence. It may be that the defendant was not as diligent as the case, as presented by the plaintiff upon the trial would warrant, but in view of the defendant's information it was hardly to be expected that the plaintiff would develop the theory which the testimony discloses, and it was not strange, therefore, that all of the evidence which might have been brought to controvert it was not produced. Under the liberal rule suggested by the court in cases of this character (Barrett v. N. Y. C. &

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Second Department, October, 1911.

[Vol. 146. H. R. R. R. Co., 157 N. Y. 663, 667) it would seem that the defendant was fairly entitled to the benefit of the newly-discovered evidence, even though it might be said to be cumulative.

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

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JENKS, P. J., CARR and RICH, JJ., concurred; THOMAS, J., concurred in result.

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

HARRY BERG, an Infant, by JOSEPH GOLDBERG, His Guardian

ad Litem, Respondent, v. THE WILLIAM HORNE COMPANY, Appellant, Impleaded with PASQUALA MOSCA, Defendant.

Second Department, October 6, 1911.

Discovery - negligence action - examination of defendant before trial.

The plaintiff in an action to recover for personal injuries may examine the

defendant before trial to obtain evidence to prepare his case for trial and to avoid the defense that the work on which the plaintiff was injured

was done by an independent contractor. The examination of the defendant should not be limited to the single ques

tion as to what work was being performed by the defendant at the time of the accident.

APPEAL by the defendant, The William Horne Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of April, 1911, denying a motion to vacate an order for the examination of the said defendant before trial.

Theodore H. Lord [Fred P. Harrington and Lyman A. Spalding with him on the brief], for the appellant.

Samuel A. Telsey, for the respondent.

PER CURIAM:

On the 21st day of March, 1911, Mr. Justice CRANE made an order, ex parte, requiring the examination of the defendant as

App. Div.]

Second Department, October, 1911. an adverse party before trial. The action is brought to recover damages for personal injuries, and one of the defenses is that the work was being done by an independent contractor, and not by the appellant. The object of the examination is to prepare the plaintiff's case for trial, and to obtain evidence for that purpose in support of the cause of action, and in avoidance of this special defense. The object appears to have been held to be legitimate in Schweinburg v. Altman (131 App. Div. 795). The appellant obtained an order to show cause why the order requiring the examination should not be set aside, and the order appealed from denying that motion was made by Mr. Justice BLACKMAR.

The appellant asks that the order be reversed, but the affidavit on which the order to show cause was granted stated that the object sought was to obtain an order limiting the examination to the single question as to what work was being performed at the time by the appellant. We do not think the order for the examination should be limited to that single question, and recommend that the order be affirmed, with ten dollars costs and disbursements.

JENKS, P. J., HIRSCHBERG, BURR, THOMAS and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

MARY BROCKHAUSEN, as Administratrix, etc., of Louis BROCKHAUSEN, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

Second Department, October 6, 1911.

Railroad - negligence

death of locomotive fireman caused by passing train – tracks not spaced to standard width - evidence not

justifying recovery.

Although

a railroad company did not leave the standard space between tracks laid in a tunnel, it is not liable for the death of a locomotive fire. man who, on putting his head through the window of the engine cab after his train had left the tunnel, was struck by a train coming in the

Second Department, October, 1911.

[Vol. 146. opposite direction at a point where the distance between the tracks had only widened to six feet two inches instead of to the full normal spacing of seven feet, there being no proof that the decedent was under any duty which required him to put out his head, and, it being daylight, he had a clear view of the tracks for 200 yards.

APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of February, 1911, upon the verdict of a jury for $12,000, and also from an order entered in said clerk's office on the 8th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

John F. Brennan, for the appellant.

Charles Morschauser, for the respondent.

JENKS, P. J.:

The appeal is by a master from a judgment against it for negligence whereby its servant was killed. Plaintiff's intestate was defendant's fireman upon one of its trains. His term of service had been long. Doubtless he was struck by some part of another train in passing. The plaintiff's witness Murphy, a brakeman on the second train, as the two trains approached one another saw the intestate with his head out of the window of the cab of the locomotive engine. The engineer with the intestate, called by the defendant, testifies that the first indication to him of an accident was when he saw the intestate's feet“ go up, and it struck me right away that there was something wrong, and I reached over and took him by the seat of the pants and pulled him in, and then I shut the engine off. He was out of the window. I pulled him back.” There is no other testimony direct as to the casualty. The conditions of passage were normal.

The negligence charged against the defendant is improper construction of its road at the point of the accident, and improper construction of its locomotive engines. The latter charge we may regard as negligible, for there is no evidence to support it; there is evidence to refute it, and the case

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