Opinion
November 16, 1910.
Charles H. Knipp [ D.C. Robinson of counsel], for the appellant.
Reynolds, Stanchfield Collin [ Halsey Sayles of counsel], for the respondent.
These orders cannot be sustained upon the ground of misconduct of counsel. The agreement claimed by Scott to be made with the plaintiff's attorney was an improbable agreement, considering the fact that he was swearing not to the extent of the injuries, but to a fact going to liability alone. In a later affidavit Scott withdrew these charges, and the record shows him wholly unworthy of belief. If the good name of an attorney were to be put in question by such evidence, the reputation of those standing highest in the profession would be very precarious.
Nevertheless, we think there was good cause shown for the granting of a new trial. The negligence claimed was in the failure of those in charge of the disabled train to flag a train coming upon the other track. Before that duty rested with those in charge of the disabled train they must have had reasonable time to have ascertained that the other track was obstructed, because the nature of the stoppage would itself have given them no such information. After having acquired this information it would then have been their duty to protect trains coming upon the other track. The crucial question, therefore, was as to how much time had elapsed since the stoppage of the disabled train and the approach of the train which bore the plaintiff's intestate. The evidence was to the effect that it was a very few minutes, except the evidence of this man Scott, and Scott himself had theretofore made an affidavit contradicting the evidence then given upon the trial. Inasmuch, therefore, as the plaintiff's case rested mainly upon this evidence, and the witness has retracted what he then sworn to and shown himself wholly unworthy of belief, it became proper in the exercise of fair judicial discretion to grant a new trial. This was without doubt the controlling reason for the action of the learned trial judge, and we think the orders should be affirmed, overruling the technical objections to the form in which the matter was presented to him.
All concurred; HOUGHTON, J., not sitting.
Orders granting a new trial affirmed, with one bill of costs, Order denying motion to set aside orders granting new trial affirmed. with ten dollars costs and disbursements.