These are appeals from two judgments, one for $121.'50 and the other for $436.50, entered in favor of the respective plaintiffs, after a trial before a justice and a jury. The first judgment represents a recovery for personal injuries, and the second judgment is for damage to property. Both causes of action are based upon a collision between one of defendant’s Fourteenth street crosstown cars and an automobile owned by plaintiff Howard and operated by plaintiff Carney. A number of witnesses were called for plaintiffs, but the defendant called none. The court charged the jury, with regard to the omission of defendant to call witnesses, as follows: “I charge you, gentlemen, that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable to its case.” To this charge defendant excepted. We.think the learned court fell into error which was seriously prejudicial to defendant. The inference which the jury presumably drew from this instruction was that defendant had evidence which it could produce, and failed to do so. There is nothing in the record to indicate that there was any witness of this accident within the jurisdiction of the court, or under defendant’s control, at the time of the trial, whom defendant’s servants knew or could call upon to testify. It is undoubtedly true that, where a litigant fails to produce a person known to be friendly to him, and who must have knowledge of the fact, and whose attendance can he obtained by the litigant, the jury may presume that the testimony of that person would not have been fayorable to the party; and the same presumption arises where the party fails to interrogate a friendly witness, produced by him at the trial, relative to a material issue in the case, which must be deemed to have been within the knowledge of the witness (Milliman v. Rochester R. Co., 3 App. Div. 109), unless, of course, such testimony would be merely cumulative. But we do not think this principle covers the instruction in' question.
The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
Blanchard, J., concurs.