Mccormick v. Central R.R. Co. — 75 Cal. 506

Majority

p. 506

[No. 9925.

Department Two.

April 17, 1888.]

JOHN McCORMICK et al., Appellants, v. CENTRAL RAILROAD COMPANY, Respondent.

Headnote

‘ÍTewly Discovered Evidence. —' Newly discovered evidence which is merely cumulative, and not such as to render a different result probable, is not ground for a new trial.

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The action is brought by a husband and wife to recover damages for personal injuries caused to the wife through the alleged negligence of the defendant. The further facts are stated in the opinion.

Manuel Eyre, for Appellants.

Gunnison & Booth, for Respondent.

Action against a street-car company for personal injuries. Verdict and judgment for defendants.

Concurrence

p. 507

The only point made is, that the plaintiff’s motion for new trial should have been granted on the ground of newly discovered evidence.

The plaintiff’s theory was, that she was struck by the horse attached to the car, and that the car wheel passed over her leg. The defense was, that the plaintiff was struck by the pole of a truck which was near the car, and that this was the cause of the accident. Upon this question the plaintiff testified that she was struck by the horse, and that the truck did not move at all. One Offerman and one Newman testified to the same effect. On the other hand, the driver of the car testified that it was the pole of the truck which struck her, and not the horse or car, and he was corroborated by a Miss Annie Norton, a by-stander.

The evidence which is claimed to be newly discovered is shown by the affidavits of one Galbraith and one O’Brien, to the effect that the truck did not move, and from its position it could not have struck the plaintiff, and the affidavit of plaintiff’s husband to the effect that a certain Mrs. Stewart had told him that the witness Norton had made declarations to the contrary of her testimony, but that Mrs. Stewart would not make affidavit to that effect. As a matter of course, this hearsay evidence is not to be regarded, and the other matters stated in the affidavit are unworthy of special notice.

The affidavits of Galbraith and O’Brien are upon a subject which was much disputed at the trial, and are merely cumulative, and not such as to render a different result probable, and therefore, under the well-settled rule, were not sufficient to warrant a new trial.

We therefore advise that the order denying a new trial be affirmed.

Foote, C., and Belcher, O. 0., concurred.

For the reasons given in the foregoing opinion, the order denying a new trial is affirmed.