Judgment and order reversed, new trial ordered, costs to appellant to abide event.
O'BRIEN, J.:
This action is to recover for damages sustained by the plaintiff who was run over by one of defendant's horse cars, and as a result lost his leg, while attempting to cross with his mother and others from the south west to the northeast corner of Twenty-third street and Second avenue. The leading facts were stated in the opinion upon the previous appeal ( 70 App. Div. 606), when a judgment for $10,000 was reversed on the ground of error in the charge to the jury. Therein it was intimated that no recovery could be had for negligence of defendant's driver in failing to stop the car, but that the negligence must be predicated upon the failure of the defendant to supply an efficient brake by reason of which it was impossible for the driver after he saw the plaintiff to stop the car in time. As appears from the opening on the new trial, the plaintiff proposed to recover upon that ground, i.e., a defective brake, but left the way open for recovery upon the ground of negligent operation of the car. The defendant during the new trial confined its attention to the question of the brake, and did not call some of its old witnesses as to the manner in which the accident happened although they were in the court room. And the defendant was of the opinion that the question of the general negligence in operating the car should not be submitted to the jury in view of what this court had said upon the former appeal, and excepted to such submission. This attitude, however, cannot be supported because upon the reversal and the ordering of a new trial, the plaintiff was free to go into every question presented by the pleadings and have such as were supported by evidence submitted to the jury. An examination of the record discloses that the testimony now presented upon the subject of the operation of the car by the driver is not precisely the same as it was on the prior appeal. Then the driver testified that he first saw the plaintiff as he stood in the middle of the track five feet ahead and he at once put on the brake and separated his horses and tried by shouting to avert the accident. On this trial he testified that he first saw the plaintiff and those who accompanied him while they were on the east-bound track going across the street with the evident purpose of crossing in front of him, and when he had his horses' heads just over the north-bound Second avenue track. He says "they were crossing over for Second avenue when I was on the north-bound Second avenue track, but they had not been on the west-bound 23d street track yet. They were about the last rail of the east-bound track, 23d street track, the north end of it — the north end. At that time I should judge that the party was about ten feet or twelve feet in front of me when I saw them there." He also says in answer to the question "Did you realize at that time that these people were seeking to cross at that point? * * * Yes, sir. That was a transfer point. * * * When I saw these people on the track in front of me I put on my brakes. I had five feet in which to stop my car from the nearest woman to me." He was then asked: "You approached the westerly side of Second avenue at the transfer point and the point where by the rules of the company your car was required to stop?" and answered, "Yes, sir." Thereafter he testified that at the rate he was going he could stop, had the brake been all right, within five feet. On the part of the other witnesses, also, there is a tendency to vary the testimony from that previously given. Thus Mrs. Csatlos says now that they started to go diagonally, but did not go diagonally, and that they wanted to go on the crosswalk and she was on the crosswalk when she saw the car, and Miss Mick and the boy were nearby and they crossed straight and on the crosswalk. And Mr. Harrison says that when he first saw the boy he was on the crosswalk and he was standing three feet from the crosswalk when the horses' heads were three feet away; "when I first saw the horses hit him he was right on the walk;" that the driver was turning the brake and the horses were at a trot, and the front dashboard was a little over the walk when the car stopped. At the last trial he said the dashboard was within four feet of the crossing. And in fixing the mark again on the plan he put the place nearer the crosswalk. The inferences to be drawn from this testimony are quite different from those that could be drawn on the former record. If they credited this evidence, although inconsistent with what appeared upon the former trial, the jury were at liberty to conclude that the plaintiff had dismounted from a car at a regular transfer place; that the car was seen by this driver; that he knew it was a transfer place and saw the people with their bundles and incumbrances headed across the track in front of him when he was on the north-bound Second avenue track; that these people walked over or near the crosswalk, but the car continued after the driver saw them going on the track and the brake was not applied till the horses' heads were three feet from the boy, although the driver should have had his car under control as he was approaching a place used by transferred passengers and where he himself under the rules was obliged to stop. Upon the subject of the defective brake, we have as before the driver's statement that the brake was worn through in two places and had been for some time and he had reported it to the starter, but not otherwise, and made no mention of it in his report of the accident and that when he applied the brake it would not act, and, whereas he could ordinarily stop in five feet, he did not stop in twenty-one feet. This testimony if credited would tend to explain the testimony of Harrison to the effect that the driver applied his brake when the boy was ahead of the horses and pulled the horses in, but the car did not stop till the boy was run over. Opposed to this we have the testimony of the conductor, who did not know of such defect, of the gear man, who had inspected the car some ten days previously and found no defect, of another driver who says that he used the same car-on that day and observed nothing the matter with the brake although he admits he had no occasion to stop suddenly. There was evidence also that no complaint was made to the starter and no record of any such defect found. Were this all that appeared upon these two subjects of the driver's negligent operation of the car and the defective brake, we should be inclined to think that they were question for the jury. The testimony of the driver, however, was rendered highly incredible and discreditable because it was shown that he had deliberately made false statements. One of these was that he is now employed by a Mr. Steinbeck, for he subsequently testified: I just gave that name; * * * excuse me for saying it but it would * * * bring my party in this case. * * * I won't tell. I would not care to. I gave the wrong name to my own counsel. I told a lie about that yesterday. * * * I did not realize that I was under oath. * * * I will give it to you if you wish, your Honor, Mr. Meyers." Again, he said that in handing his report to the company he omitted to speak of the defective brake because he intended to conceal it from the company and did not intend to tell the whole truth about it, whereas, on the previous trial, it was shown that he said he did not have any intention to conceal it in his report. And when asked why he said that on the last trial he answered, "I wanted to hold my position." Then he had to admit he was not employed by the company on the last trial, and it was two years after he left its employ that he went to the plaintiff's attorney and told of the brake. At the close of the evidence the court submitted to the jury three questions: 1st, If the defendant was negligent, was the negligence the negligence of the driver in operating the car? 2d, If the defendant was negligent, did the negligence consist in furnishing the driver with a car the brake of which was defective? 3d, Was the brake a defective one? The jury retired and thereafter returned and handed in a paper, the foreman saying: "We find for the plaintiff." The court read the paper and said: "It is impossible to make anything out of the answers to these questions, and you will have to entirely reconsider them. Do counsel desire to see these answers to the questions?" Plaintiff's counsel said he did not, and suggested that the court instruct the jury if there was any ambiguity. The judge then said that the answer to the first question was consistent with the verdict rendered, and that the second question was "answered in a manner that has a tendency upon the part at least of some of the jurors to negative the first proposition to which they agree; and the same is true of the third question." He then asked: "Do you wish any instruction?" A juror thereupon answered: "The reason the second and third propositions were not answered was because some of the jury decided to throw out practically the evidence of the driver Knapp." The court remarked that it did not care to hear about the deliberations, but that the verdict was consistent with the theory of the case that was charged, only the answers to those questions ought to be agreed upon one way or the other by all the jurors, and for that purpose the second and third questions would be sent back. The defendant's counsel then requested the court to charge that if the jury threw out the testimony of Knapp it was their duty to answer those two questions for the defendant; and the judge said he would charge to that extent, adding, "because I realize the theory upon which you reached the verdict." Thereafter the jury retired and returned with an affirmative answer to each question, and stated that their verdict for plaintiff was $15,000. It is evident from what thus took place that there was a mistrial. The jury did not believe the driver, and as his was the only testimony to support the theory of a defective brake, it was, under the instruction of the court, their duty to have answered the second and third questions submitted to them in the negative. Instead, however, they finally answered them in the affirmative, and we are thus left in doubt as to whether defendant's liability was predicated on the ground of negligent operation of the car or on the ground of a defective brake. On the latter ground the verdict was clearly against the weight of evidence, for, as we have pointed out, against the driver's testimony, which alone supported that theory and which the jury did not believe, we have witnesses whose testimony tended to show that the brake on this car on the day of the accident was not defective. Considering the course the trial took, the refusal of the jury to follow the instruction of the court and the very large verdict, it is evident that either prejudice or misapprehension of the issues or the instruction of the court had a part in bringing about the verdict. It follows, therefore, that in the interests of justice the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event. Van Brunt, P.J., McLaughlin and Hatch, JJ., concurred; Ingraham, J., concurred in result.