Stoddard v. President of the Delaware & Hudson Canal Co.

Majority

p. 73

Clarence F. Stoddard, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December 8, 1891.)

Headnote

Venue—Change of.

Where the cause of action arises out of a railroad accident in which it appears that a large number of prominent residents of the county in which the venue is placed were injured, many of whom have made claims against the defendant, and there is a feeling of hostility against defendant on account thereof, these facts are sufficient to show that it would be difficult or impossible to obtain an impartial jury in that county, and are not overcome by opinions of plaintiff’s witnesses that there is no prejudice and that an impartial trial could be there had, and an order changing the place of trial will be upheld.

Appeal from order changing the place of trial from Washington county to Schenectady county on the ground that an impartial trial could not be had in the former county.

The defendant’s affidavits show the following facts and reasons why a fair and impartial trial could not be had in Washington county.

1st. The accident out of which this cause of action arose occurred at Baxterville, three miles from Salem, the county seat, while court was in session there. It was known as a terrible accident. A passenger train rolled down an embankment and twenty-seven passengers were injured. Intense excitement prevailed and the company was loudly condemned.

2d. Out of the twenty-seven injured passengers twenty-one were residents of Washington county.

3d. That of the seventeen towns of the county of Washington from which jurors are liable to be drawn, there are persons living in at least twelve of said towns who were injured or claim to have been injured on defendant’s road.

4th. That the plaintiff herein and each of the persons injured have been seeking by their own words and actions as well as those of their relatives and friends to disseminate throughout the said county a feeling and sentiment of prejudice and hostility against the defendant among those liable to be drawn as jurors.

5th. That there is scarcely a town in said county of Washington where the subject of the accident in question has not been discussed and sympathy expressed for the injured and censure for the defendant

6th. That this feeling of hostility has been increased and aggravated by reason of two very serious accidents happening in said county of Washington on defendant’s road prior to the one in question, at Fort Edward within three miles of Sandy Hill, the other county seat, in which accidents a large number of residents of the county were injured, some quite seriously.

7th. The plaintiff is an artist and has resided in three of the towns of Washington county, and in the year 1890 was proprietor of a hotel, at Lake Lauderdale, in said county. This hotel and grounds were extensively used by picnic parties from many of the towns of said county.

p. 74

8th. Prior to this application five other actions for personal injuries, arising out of the accident at issue herein (Baxterville), in which the venue was laid in Washington county, were removed by order of this court from Washington to Schenectady county, on the ground that a fair and impartial trial could not be had in Washington county.

9th. Upon said prior applications a large number of affidavits were presented from persons residing in nearly every town in the county, many of whom were prominent men in the county, and most of whom were themselves liable to jury service. In this manner the subject of the Baxterville accident was revived and rediscussed in every town in the county.

10th. In the opinion of the affiants, residents of Washington county and peculiarly qualified to judge by reason of their official or personal and business position in the county, the feeling is such that a fair and impartial trial cannot be had in the county of Washington.

Westfall & Whitcomb, for. app’lt; Edwin Young, for resp’t.

This is an appeal from an order changing the place of trial on the ground that an impartial trial cannot be had in Washington county, named in the complaint. This is plainly a question of fact. And the opinion of the learned justice at special term should be followed unless very evident error has been committ’ed.

The facts stated by the defendant on the motion are very strong. The cause of action arose out of a railroad accident, by which a large number of persons were injured ; most of them residents of Washington county. There many of them have made claims against defendant for damages arising out of this accident.

Without going into detail of the affidavits it is enough to say that there are many facts which show that it would probably be difficult or impossible to have an impartial trial in Washington county. These facts are not overcome by the opinions of plaintiff’s witnesses that there is no prejudice and that an impartial trial could be there had.

The order is áffirmed, with ten dollars costs and printing disbursements.

Math am, J., concurs.