I agree with the contention of the defendant that the plaintiff has failed to show that her intestate was free from negligence contributing to the accident. The evidence is practically undisputed that the defendant was operating its car upon Fulton street at a high rate of speed, and that the plaintiff’s intestate was driving a horse at the rate of five or six miles an hour, possibly more, along Hoffman boulevard, headed directly for the defendant’s line of railroad. It is urged as a ground of defendant’s negligence that the motorman could have seen the plaintiff’s intestate approaching the *92point of the accident at this pace a sufficient distance to have* brought his car under control, and could thus have averted the accident, but it is not suggested by the evidence that the intestate could, not have seen the car and the motorman an equal distance, and in view of the situation, that there was no continuation of the boulevard directly opposite, there is as good reason for assuming that the-motorman did not anticipate the attempt to cross in front of him as there was for the intestate to assume that the motorman would see him and reduce the speed of his car sufficiently to avoid the* accident. The case is barren of any evidence of care on the part off the intestate; he is shown to have been driving, but no one saw him ' look to the right or left, or make any effort to check the speed of his horse or do any act or thing from which it might be inferred that he was in the exercise of any degree of care whatever, except that one witness, apparently speaking of almost the exact instant, of the accident, says: “ The driver, before he was hit, was trying- to-stop the wagon, stop the horse. He was pulling to his right.” The respondent, referring to this testimony, says in his brief: “ The deceased was driving' along the center of the boulevard with his: horse on an ordinary trot, five or six miles an hour, and continued, straight across until he had gotten upon the track, and evidently saw the car almost on top of him, when he tried to pull to the right, to avoid it.” That is, the deceased, between three and four o’clock in the afternoon of August 16, 1900, a man thirty-eight years of age, in good health and possessed of all his faculties, drove upon the-tracks of the defendant with a car'approaching in full-view, and there is no evidence whatever of any care on his part until, his horse was upon the track and he discovered the car upon him, “ when he-then tried to pull to the right to avoid it.” This, aside from the testimony of one witness, “ I saw the man in the buggy moving his, lips. He was driving, He had the lines in his hand,” is the only evidence bearing upon the care exercised by the deceased to which our attention is called, and it seems wholly inadequate to support this judgment. It appears from. the evidence that a woman was riding with the plaintiff’s intestate, who disappeared, without giving: her name, after the accident, and no witness is produced who is able to- say that the intestate took any care whatever to avoid' this accident. . It seems to us quite proper that the jury should have found. *93that the defendant was negligent in the operation of its car, but it is •difficult to understand how it can be held that a man who drives upon the track, where a rapidly approaching car is in full sight for a distance of several hundred feet at least, under the circumstances indicated by the evidence, can be said to be free from contributory negligence. The same argument which convicts the defendant’s motorman of negligence would seem to be conclusive against the deceased. There is no suggestion that his horse was not entirely manageable, and could not have been stopped within a few feet, traveling at the rate of five or six miles an hour, or turned aside. Because the evidence does not show absence of contributory negligence, which is a part of the plaintiff’s affirmative case, I am of the opinion that the judgment and order appealed from' should be reversed.
In support of the motion for a new trial on the ground of newly-discovered evidence, it appears that Martha Louise Hinchey was with plaintiff’s intestate at the time of the accident, and the defendant’s investigators appear to have known of this fact and to have reported to defendant from time to time, either that they were unable to locate her, or that she claimed that the deceased was driving at the time of the accident. This young woman now says in an affidavit that plaintiff’s intestate permitted her to drive; that she had no control over the horse; could not stop or turn him. She also «ays: “ Just before the car struck the buggy, Lane and deponent were talking and laughing and neither of them looked, and deponent never even thought of the car or realized that they were approaching a street car track. That after the horse got to the track and the car was just striking them Lane seized the reins, but it was too late to avoid the accident then, as the car was right upon them. She had been driving with Lane at least five or six times before and he knew that she was unable to control the horse,” etc.
This, it seems to me, is important as bearing upon the question of the plaintiff’s intestate’s contributory negligence, and the mere fact that the defendant knew of this witness, in view of the claim which «he made, that the deceased was driving, does not rob this evidence •of the character of newly-discovered evidence. New trials are not granted upon newly-discovered witnesses, but upon newly-discovered •evidence, and if the defendant had made proper inquiries, and had been assured that the witness would testify that the deceased was *94driving, it had a right to ■ assume that she would be called by the» plaintiff, or that her evidence was of no importance in defense. The-, evidence which this witness is prepared to give, as set forth in her affidavit, is certainly important as bearing upon the leading issue-in the case, and, after reading the affidavits of all the parties, I find, no suggestion that the defendant had any reason to believe that the witness would testify to the facts which she now states under oath, but,, on the contrary, that it was expected, if she testified at all, that she-would appear in support of the contention that the deceased was driving. The matters suggested by Miss Hinchey’s affidavit, if true, show conclusively that the deceased was not exercising any degree of care,, and while the papers do not allege, that this evidence will be offered, upon a new trial, it is, I believe, the only rational inference to draw from the case as it is now presented. To say that the defendant will not offer this in evidence, which affirmatively shows negligence* upon the part of the deceased, but will rely upon the case as formerly presented, is contrary to the interests of the latter, and business corporations may usually be depended upon to do that which it. is for their interests to do,
The judgment and orders appealed from should be reversed and, defendant’s motions for a new trial granted.