Third Ave. Ry. Co. v. Mills

HOUGH, Circuit Judge (after stating the facts as above). [1] The testimony for plaintiff proved a plain case of negligent driving by the motor truck; the only negligence suggested against the street car was that it did not stop as soon as it could. As to how soon it could stop there was no evidence at all, until defendant’s witnesses were produced, when questions by plaintiff’s counsel elicited testimony that even the emergency brake could not stop a car going at the rate stated by plaintiff in less than 35 to 40 feet. The questions so asked were not germane to anything the witness had said on direct examination. Deutschmann v. Third Ave. R. R., 78 App. Div. at page 414, 79 N. Y. Supp. 1073. It is true (nearly always) that a jury is not bound to believe any particular witness, but they must believe some witness, or reach conclusion by comparison of divers and different statements. Here there were no differing statements on the point under consideration. Any verdict must rest on evidence, and plaintiff’s evidence did not prove nor tend to show that the car could have stopped within 20 to 25 feet, or any other definite distance; while testimony deliberately sought by his counsel on cross-examination tended to show the impossibility of the hypothesis (it was no more when plaintiff rested) on which his case was founded. ' Therefore the complaint should have been dismissed; a conclusion reached without any attention paid to witnesses for defendant, who testified to conduct by the.motor truck even more wanton than that above indicated. [2] That there must be a new trial, justifies notice of the other assignments. The exception to charge as to degree of care must be considered in connection with the charge as a whole, and the learned judge carefully pointed out that while the highest degree of care was. [663] due, “what the highest degree of care is must be determined by all the facts and circumstances of the case”; that is, negligence is the lack of care under the circumstances shown, and care is the absence of negligence under the same circumstances. The circumstances vary, and they measure the care due, and therefore the negligence. It would be more accurate to apply descriptive adjectives (if they are necessary at all) to the circumstances, rather than to their result; but, since the jury were plainly told that the facts measured the care, we discover no error in the statement. On this point we have been favored with abundant citations from many courts, but none from those whose decisions are ruling with us. Milwaukee, etc., R. R. v. Arms, 91 U. S. at page 489, 23 L. Ed. 374, and Grand Trunk R. R. v. Ives, 144 U. S. at page 417, 12 Sup. Ct. 679, 36 L. Ed. 485, sufficiently cover the unnecessary use of adjectives characterizing either negligence or care. Railroad Co. v. Varnell, 98 U. S. at page 480, 25 L. Ed. 233, is especially applicable to street conveyance; Memphis Ry. v. Bobo (C. C. A. 6) 232 Fed. at page 711, 146 C. C. A. 634 (affirmed on another point as Memphis Ry. v. Moore, 243 U. S. 299, 37 Sup. Ct. 273, 61 L. Ed. 733), is a recent statement of the rule, substantially as put in the court below, though with more numerous adjectives, of which error cannot be asserted, if and when the jury is well instructed that negligence and care are present or absent according to the facts proved. [3] The conduct of plaintiff’s trial counsel requires comment. He was evidently determined to get before the jury the fact that a strike (by whom does not appear)' was at the time affecting the street car service. To that end he asked a question in cross-examination which implied that the witness was a “strike breaker.” The question was excluded, and counsel told that the case had “not anything to do with the strike,” and thereafter he repeatedly referred to the matter; defendant not repeating objection. There existed at the close of all the evidence nothing connecting accident and strike, and no denial or doubt of the statement of defendant’s motorman that his employment antedated the strike referred to. Whether this proceeding alone would have required reversal we do not decide; to show the importance of the matter, or its triviality, would require further exposition of facts; but we point out that defendant was not under any obligation to call attention, to the matter more than once, that merely asking the questions constituted the prejudice to defendant, that repeating the suggestion or insinuation after one correction from the court was disrespect to that court, and that such a course of proceeding, in a matter sufficiently grave, discredits any verdict, and may in the appellate court vitiate the judgment rested thereon. Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494; Simpson v. Foundation Co., 201 N. Y. at page 490, 95 N. E. 10. Cf. Williams v. Brooklyn, etc., Co., 126 N. Y. at page 103, 26 N. E. 1048. Judgment reversed, and new trial ordered.