May 2, 1906,
Edwin Duffy, for the appellant.
Rowland L. Davis, for the respondent.
The plaintiff's case depends almost entirely upon the credit which he is given as a witness, and it is evident that his evidence is not always reliable. It is improbable that the foreman told him there was no nut for this bolt, for the evidence shows that nuts to fit this bolt, a kind in common use, were in great quantities in different places around the factory to the knowledge of the employees. The witness Tower swore that he had worked in the factory for two or three weeks prior to the accident, and that there was no knifegrinder there. The evidence is very conclusive that Tower did not begin work in the factory until March first, the accident occurring March third. The evidence is clear that the bolt upon the guard was properly secured by a nut, and that a knifegrinder was employed in the factory all the time. It is very clear that the knives were in proper condition, and that the machine was not defective in that respect. It is unnecessary to go through the evidence of the various witnesses. The plaintiff is contradicted upon every substantial point of his case by many disinterested witnesses and by circumstances which seem to be significant. The evidence of many witnesses tends to show that the plaintiff persisted in wearing a glove upon his hand while operating the machine, against the caution of his superiors and his coemployees, he being told that it was liable to cause his fingers to be caught in the machine, and the glove was found upon the machine, with the back of the hand torn off, immediately after the accident. Plaintiff seeks to explain this by Tower swearing that the day before the accident the plaintiff requested him to cut off the fingers on the palm side of the glove, so that the fingers would be free, saying that he was afraid he would get caught in the machine, and that afterwards the plaintiff put on the glove and used it. The plaintiff denies that his superiors cautioned him, and swears that the day before the accident he had Tower cut off the fingers on the palm side of the glove for the reason that they had got worn out on the hand and were no use, and had some fringe there. It is quite apparent that the plaintiff was using the glove at the time of the accident, and that he and everybody else in the factory believed that it was unsafe and was liable to cause just such an accident as did happen. A careful perusal of the evidence and a consideration of all the facts leads to the conclusion that the verdict is not sustained by the evidence. In a case where the evidence is so strongly to one side, a small circumstance may have influenced the jury, and in this case we look for the circumstance. It is held by the Court of Appeals in Cosselmon v. Dunfee ( 172 N.Y. 507) that the mere asking a question of a witness in a negligence case whether there was an accident insurance in favor of the defendant is improper practice, and may fairly call for a reversal of the judgment when it probably influenced the result. If the plaintiff's counsel in this case had been really desirous to know whether the jury in this agricultural county, far removed from the large cities, were stockholders in a company insuring against accidents, he probably would have been satisfied by asking if any of the jurors were stockholders in any corporation. If any of the farmers, mechanics or tradesmen who would naturally constitute such jury had answered they were, it would have been easy to find what kind of corporations they were interested in, and whether they were agents for such a corporation would naturally be answered by finding what the business of the various jurymen was. Many other questions easily suggest themselves which would naturally draw out the necessary information without an appeal to the prejudice of the jury. It is evident that the counsel was not desirous of knowing whether the jurors were interested in companies insuring against accident, but he limited the question to companies insuring corporations against accident, thus making it more suggestive to this case. It is quite evident that this question was asked for the sole purpose of suggesting to the jury that this company might be, or probably was, insured against accident, and that the plaintiff, if he recovered, would be paid practically by the insurance company, which was paid for just such risks. The language of the court might have conveyed to the minds of the jurors the impression that the answer "yes" to that question would have rendered the juror subject to challenge. It seems that the question of the counsel and the language of the court may have and very probably did suggest to this jury that this was a case where in reality an insurance company and not the defendant was upon trial.
The respondent's counsel calls attention to the fact that this question was taken verbatim from Grant v. National Railway Spring Co. ( 100 App. Div. 234), and assumes that it is justified by that decision. There, when such a question was asked, the trial court discharged the jury, imposed the costs of the term upon the plaintiff, and, upon appeal, the order was reversed, the court saying it could not inquire into the motive of counsel, and the asking of such a question did not warrant the order. Here the plaintiff has obtained a verdict in a case where the evidence was decidedly against him, and it is probable that some extraneous matter entered into the consideration of the jury, and it seems that the question and the ruling might well have prejudiced the jury, and it is more natural to explain the verdict in that way than in any other suggested. Every suitor is entitled to a fair and impartial trial, and to have the verdict of the jury rest upon the law and the facts of the case entirely unprejudiced by outside considerations. A defendant corporation on trial in a negligence case has enough to meet the case upon the merits, and ought not to be required to meet suggestions which are thrown out, the only effect of which are to prejudice the jury or to get into their minds something which ought not to be in the case. And when counsel ask such questions, overreaching the limit, with a hope to gain a benefit from them, it is but fair that he should take the risk, and in a close case the court may properly consider that such suggestion had the very effect which counsel intended it should have. It is unnecessary to decide that the asking of such a question is a legal error which calls for the reversal of a judgment, but it should be understood that such questions are dangerous, and when asked without good reason may be very unprofitable to the party who asks them. While in this case it is clear that the verdict is unsupported by the evidence, a new trial under the circumstances is not to be regretted.
The verdict is against the evidence and is not fairly sustained by it, and the order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. It is, therefore, unnecessary to consider several rulings in the case which otherwise might require serious consideration.
CHESTER, J., concurred; SMITH and COCHRANE, JJ., concurred in result; PARKER, P.J., not voting.
Order reversed and new trial granted, with costs to appellant to abide event.