#### O’HARRA v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Railroad Companies — Injury to Soldier Guarding Property in Yard.

Where, during a strike of the employes of a railroad company, a militiaman was, at the company’s request, placed on guard in its yard, and the cars in the yard were not moved for 27 hours after he arrived at the yard, the question of whether defendant, in moving its cars without warning to him, so that he was struck by them, used ordinary care, was one of fact.

2. New Trial—Newly-Discovered Evidence.

A new trial will not be granted on the ground of newly-discovered evidence, where such evidence will not probably overcome the evidence on the trial inconsistent with it.

Appeal from circuit court, Oswego county.

Action by Maria A. O’Harra, as administratrix of Charles N. O’Harra, deceased, against the New York Central & Hudson River Railroad Company, for injuries resulting in the death of intestate. From a judgment entered on a verdict for $3,000 in favor of plaintiff, and from orders denying motions for a new trial made on the minutes, and on the ground of newly-discovered evidence, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ,

Mullin, Griffin & Walker, for appellant.

C. N. Bulger and D. P. Morehouse, for respondent.

*568HARDIN, P. J.

In August, 1892, there was a strike on the defendant’s road in the city of Buffalo and East Buffalo. It became so general and alarming that the defendant appealed to the governor of the state to exercise his powers as commander of the militia, and he did so by calling out the militia of the state to the extent of some 8,000 men. The call that was communicated to the forty-eighth separate company of Oswego reached there about 12 o’clock on the night of the 16th of August, and about 3 o’clock of the morning of the next day the company were placed in cars, and transported immediately to the scene of the trouble; and, upon reaching the defendant’s property, some of the defendant’s officers immediately communicated their desires to the officers of the forty-eighth separate company in respect to the operations to be observed in order to carry out the efforts to protect the property of the defendant. Defendant’s property was in the hands of riotous strikers, and a mob spirit prevailed, and its property was in great danger of disaster and destruction. After the officers of the forty-eighth Separate company had received information and instructions from the officers and managers of the defendant’s affairs, they proceeded to deploy their men in and about the stock yard of the defendant in East Buffalo, where there were numerous tracks and side tracks, besides the main tracks of the defendant. Plaintiff’s intestate was called upon to act as sentinel in guarding a certain portion of the yard. He was a young man about 21 years of age, and apparently obedient to the instructions of his military superiors; and in the discharge of his duty, after receiving such instructions, he was engaged in pacing a distance of about 200 feet, in uniform, attempting to guard the property of the defendant against depredations, either from the strikers, or evil-disposed, riotous persons; and while engaged in the discharge of his duty, in obedience to the instructions of his commanding officers, he received the injuries which resulted in his death. There was a train of some 25 cars standing in the yard near the end of the beat given to the intestate, and they had not been moved in any way by the defendant during the time the intestate had been in the yard. The arrival of the forty-eighth separate company was at 8 o’clock on the morning of the 17th. The injuries resulting in the intestate’s death were received about 11 o’clock of the morning of the 18th of August. Considerable evidence was offered tending to show that the yard was apparently a “dead yard,” or to show that there had been no movement of this train of cars, and, that, judging from the fact that no movement had been made of them, it was not reasonable to apprehend a sudden change of operations on the part of the defendant. The 25 cars extended from west to east, and the easterly portion seemed to be upon a curve, and the easternmost portion, apparently, was not discernible from the westerly portion, or from the beat occupied by the intestate. They were suddenly put in motion by an engine which was at the east end of the train, pushing several cars down against the body of dead cars, and suddenly moving the whole line westerly, and apparently the movement thus occasioned *569■caused the westerly end of the cars to collide with the deceased, and to cause the injuries to him which he received on that occasion, resulting in death in about an hour after he was struck.

After reading the evidence presented in the appeal book, we are of the opinion that the question of whether the defendant exercised towards the intestate ordinary care and precaution; whether its omission to give timely and due warning of the movement •of the cars, or in some way to apprise the intestate that the cars were to be set in motion,—was a question of fact for the jury. In considering this question, it was very proper for the jury to bear in mind that the soldiers were invited by the defendant to come to its aid when its property was in peril, and when its business was interrupted, and that at the instance of the defendant the soldiers were placed in the yards, and were instructed, in a general way, to look out for all depredations and depredators, and that, under the circumstances of the case, the railroad was called upon to treat the soldiers with care and prudence. There was evidence tending to show that no bell was rung or whistle sounded or alarm given, which could in any way arrest the attention of the deceased to the disposition of the defendant to suddenly change its course in respect to the dead cars standing near the termination of the intestate’s beat. The defendant was chargeable with notice of the position occupied by the intestate, and of the possible dangers that might arise from a sudden change of its action by causing -its cars, without warning of any kind, to be put in motion. The question, therefore, was for the jury to determine, whether such reasonable precaution in their management as ordinary prudence dictates, to protect, the intestate, was given. Hollender v. Railroad Co., 19 Abb. N. C. 18; Young v. Railroad Co., 13 Daly, 291, affirmed 103 N. Y. 678. It is contended in behalf of the appellant that the intestate was chargeable with contributory negligence. After all the facts and circumstances surrounding the situation of the deceased at the time of receiving the injuries are considered, a reasonable deduction therefrom seems to be that it was a question so circumstanced that the question of whether he was guilty of negligence or not was one which should have been, and was properly, submitted to the jury. Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. 145. We think the facts of the case before us differ quite essentially from the pivotal facts disclosed in Van Schaick v. Railroad Co., 43 N. Y. 527. In that case it did not appear that Van Schaick had any such assurances from the lapse of time as the deceased in the case now before us had, as to the stationary condition of the cars which he was passing. The instructions of the trial judge were quite reasonable upon the question of the intestate’s freedom from negligence on the occasion of his receiving the injuries. We see no error in the course of the trial which requires us to interfere with the verdict of the jury.

2. A motion was made for a new trial on newly-discovered evidence, based upon the affidavits of Cottle and Harlach. Some ■of the facts which are stated in the affidavits are upon subjects upon which testimony was given, and can, at most, be said to be *570conflicting with some of the evidence found in the progress of the trial. Under the rule which is to the effect that the new evidence must be of such importance that it would probably overcome all the evidence given upon the trial inconsistent with that newly discovered, we think the trial judge committed no error in refusing to grant a new trial. Adams v. Bush, 2 Abb. Prac. N. S.) 104; Railroad Co. v. Sage, 35 Hun, 95. The trial judge saw the witnesses during the'progress of the trial, and was called upon to judge as to whether or no, in his opinion, the affidavits furnished indication of such evidence as, if considered in connection with that given upon the trial, wrnuld lead to a different result; and his judgment, and therefore his decision, in the premises, was that the alleged newly-discovered evidence would not produce a change of result. We are not persuaded that he committed any error in that regard. We are of the opinion that the judgment and orders should be affirmed, with costs. 1

Judgment and orders affirmed, with costs. All concur.