I concur with Mr. Justice Williams that, a new trial should be granted in this case Upon, the second ground discussed" by him. I agree, with both Justices Williams and Ingraham that a new" trial cannot be granted iipon the first ground considered in each of their opinions. As to the second-ground, I desire to add some considerations to those pointed out by Mr. Justice Williams.
The affidavits conclusively establish that, when the plaintiff was ■called to the witness stand during the examination of Dr. Kellogg, he made use of" crutches and wias,lifted and helped along by his father, and that he returned to Ms seat in the same manner; but that, nevertheless, for two weeks and over before the trial the boy had entirely discarded his crutches in the house where he lived, and had done so with his mother’s consent. The affidavits stating that he had^ abandoned the use of- crutches indoors before the trial are numerous and uncontradicted. Flis mother, herself, deposes that she “ did request and instruct her son Martin to use crutches at all times within the house and when he went without the house,./or the first three or four weeks after his return from the hospital ¡ and that during the'subsequent intervening weeks prior to the trial your deponent requested and instructed her son Martin to use crutches 'when he walked without the house, upon the street, and elsewhere.” It will be observed that Mrs. Corley here pointedly omitted to state that after the first threé or four weeks following his return from the hospital she gave her son any instructions to use crutches in the *413house. It is overwhelmingly established that, during the latter period, lie never used them in the house and frequently omitted their use out of doors. Indeed, he played and ran about in the streets quite the same as other boys. The use of crutches in the court room was, therefore, wholly unnecessary. The boy had nothing to fear from the people in the court room nor from the narrowness of the aisle to be traversed on his way to and from the witness stand. But, if he had anything to fear from these surroundings, the danger could only have been enhanced by the use of crutches. The reason which is given for their use seems quite shallow. It is, in truth, but a transparent pretense. There could have been but one purpose, and that was to hoodwink the jury — to deceive them as to the boy’s sufferings and to appeal to their sensibilities. It was bad enough to present to the jury the false picture of a suffering boy upon crutches, But that was not all. He was lifted up, helped upon his crutches, supported while thereon and assisted, as he proceeded, apparently with great difficulty, to and from the witness stand. This was a gross, and I regret to say, a deliberate deception. For, it appears, by uncontradicted testimony, that immediately after the trial the boy was secluded and rigidly kept within doors. His parents were, evidently determined that the spectacle presented in the court room should not be publicly followed by too marked and dangerous a contrast. And yet, while he was thus withdrawn from general observation, he was permitted, without crutch or assistance, to play upon the roof of the house and actually to climb upon the rear tire escape. As his mother naively remarked to one of the affiants, “ he. had to get some air sometime.” Not a word of this is denied by either of the boy’s parents. Mr. Corley says nothing whatever upon the subject. Mrs. Corley is most specific in her denials with regard to other matters, but her denial stops short when she reaches the matter in question. There is neither denial óf the fact nor explanation of what is thus admitted. What transpired in the court room is also practically undenied. The affiants, who present the plaintiff’s version of the incident, admit the substantial facts but vary the coloring. Or, rather, they apply their own coloring. All admit that the plaintiff’s counsel publicly called upon the boy to approach the-witness stand so that his physician might point out to the jury the location of the injuries and “indicate them on the boy’s person.”' *414And the record of the trial shows, that the plaintiff was .examined by this physician before the jury. All concede that- the boy, in going to and returning from the witness stand, had “the assistance of his crutch and his father.” There is no denial that Mr. - Corley lifted ■ the boy;up and helped him to get hold of his crutches; no denial that, paitly supported by his father and aided by the crutches, with great apparent difficulty, he made his way to the witness stand where the doctor was; no denial that, when the doctor was through with him, wit'h equal apparent difficulty he made his way back to his seat, assisted and supported in -the same way. It- is also stated, ■ without contradiction, that the infant while m route kept his right leg bent and the right foot raised above the floor, and was apparently utterly unable to stand Or bear any weight upon it. Dr. Chapin, too, deposes, and his statement is not denied, that “ said infant carried his leg as if he had a dislocation of the hip joint or a tubercular or other inflammation of said joint.” - ■
In view of such conceded facts, of what importance are-the opinions of affiants upon either side as to the tone of the picture or as to its effect upon the jury. One side says that, the incident was pathetic ¡and calculated to inflame the sympathies of - the jury;' the -other that it was a very trivial matter,, quite - simple and natural under the circumstances, and productive of no possible .effect-, apart from the evidence of permanent injury. The facts, however, speak for themselves.. The jury were neither blind nor -deaf. They undoubtedly awarded damages for the permanent injury; that is, for the probable shortening of the leg. But how can it be asserted ! that they confined themselves to this single element ? They were -also authorized to award damages for pain, suffering and inconvenience, past, present and prospective ; and, undoubtedly, counsel, in summing up, dwelt upon this general element of damage and begged the jury to give it due consideration. . How can it be doubted that they did ¡consider the plaintiff’s pain, suffering and inconvenience, in addition to the shortening of his leg ? And if they did, as we are bound to- assume they did, whether or no their attention was specially -called by the court to this element of damage, it must be conceded that the damages were enhanced by the child’s actual and present suffering and distress as dramatically depicted before their eyes. This picture was' more plausible, potent and convincing than mere *415words issuing from the mouths of witnesses. A jury may doubt witnesses or forget their precise language, but they can hardly fail to take in such an object lesson as was here presented to their physical senses. The plaintiff’s learned counsel fully appreciated this, and he took immediate advantage of the incident — doubtless, innocently (as we have no reason to suppose that he was aware of the deception). For, when the defendant’s counsel ventured to inquire of Dr. Kellogg whether it was necessary for the boy to be then on crutches, that physician was promptly asked on the redirect, whether he ever saw boys walk on crutches from preference, or whether he ever saw one do so unless compelled to •—■ questions which this plaintiff’s doctor very naturally answered in the negative. How it is possible, in view of all these facts, to say that the incident in question was “ nothing more than a statement of the boy to the jury that the injury which he had received was more than the defendant claimed,” passes my comprehension.
The respondent entirely misapprehends the grounds upon which a new trial under such circumstances may be granted. It is neither upon the ground of surprise nor of newly-discovered evidence. I agree with Mr. Justice Ingraham that the cases of Cole v. Fall Brook Coal Co. (40 N. Y. St. Repr. 834) and Brooks v. Rochester R. R. Co. (63 id. 508) are not precisely parallel to the present case, though the principles there stated support the defendant’s motion. The host of affiants here who depose to the plaintiff’s ability, to go about without crutches or assistance are not necessarily witnesses in the cause at all — past or prospective. Their depositions are but indirectly upon the merits. These depositions bear directly upon the deception practiced upon the court and jury at the trial. They clarify the fraudulent trick and device by showing that the spectacle presented to the jury was essentially false and sham. This is not newly-discovered evidence at all as that expression is ordinarily used, but simply direct evidence of the fraudulent artifice which was resorted to in the court room. Nor have the rules with regard to surprise any important bearing upon the present question. The defendants were not, in a legal sense, surprised by the incident complained of. They knew that the boy was injured, but they did not know, nor were they bound to know, that crutches and personal assistance were then and there essential. The boy himself *416was not examined, nor was his father, while his mother testified that he had not heen off his crutches at all, to her knowledge, since he came home from the hospital — a statement which was grossly inaccurate, blit which intensified the deception. There was no reason why the defendant’s counsel, any more than the court or jury, should suspect the integrity of a spectacle which was presented with every appearance of verity and which was colored by testimony calculated to avert suspicion. But even if their suspicions had been aroused — if doubt had been awakened by some -quick divination — it would have imposed a grave responsibility updn them to question the appearance at such a critical moment. If it had turned out that their suspicions were unfounded, the public expression of these suspicions wpuld certainly have injured their client’s case. It would have readily subjected them and their clients to the impression that they were adding heartless insult to injury. The defendant’s counsel were surely not required to fortify themselves "in advance for any fraudulent device which might possibly be attempted in the court room. '
• It is a, mistake to suppose that a new trial can only be granted when a cáse therefor can be classified under some well-defined head such as surprise or newly-discovered evidence. The court is not thus limited. The true rule is well stated in Graham and Waterman on New Trials, 1009, as follows: “ It need scarcely be said that any unconscionable advantage obtained during a trial by one party over the other, through fraud or artifice, to the injury of the- latter,will be good ground for a new trial. - So obvious a principle of common right and justice requires no comment and needs no illustration.” I quité agree that verdicts should not lightly be disturbed, and that the court, in granting new trials, should act with great caution. But the rule above stated -—■ a rule which was fully recognized in Ward v. Town of Southfield (102 N. Y. 287)—is founded upon justice and necessity. It should be firmly applied when the facts clearly warrant its application. I can conceive of nothing better calculated to encourage fraudulent litigation than the minimizing of such misconduct as is here disclosed.
The order should, therefore, be reversed, and a new trial granted, with costs of this appeal to the appellant. The costs of the former trial should abide the event.