Chicago & Eastern Illinois Railroad v. Syster , 32 Ind. App. 239 ( 1904 )

Roby, J.

This- action was brought by appellee to recover damages averred to have been sustained by him in leaving a train of cars about to collide with another train. It was conceded at the trial that if appellee was then in-' jured, appellant was liable. This issue of fact was litigated.

Appellee was suffering at the time of the trial from a rupture. The collision occurred March 5, 1901. In September, 1900, he got the employment of mine boss in which he was engaged at the time of the collision, and in July, 1901, took service on a street car, which continued until September, 1901, when he secured employment as a brakeman at Mattoon, Illinois. He testified that lie jumped from a car and felt a burning sensation in bis groin; that be immediately thereafter went out to flag a train; that about three weeks or a month later he discovered a knot in his groin. In May, 1901, he went to see a doctor, who told him he was ruptured, and prescribed a .truss. His complaint was filed May 17, 1901. There was testimony to the effect that he made complaint to various persons at various times. There was also testimony to the effect that he had stated to a number of persons that he was not hurt at the collision. On his direct examination he testified that he never received any other injury in the region named than the one designated. There was much other testimony, but enough has been stated to indicate that the fact in dispute was involved in uncertainty.

A verdict was returned for $1,100. Motion for a new trial overruled, and judgment on verdict. The only error assigned is that the court erred in overruling such motion.

The ground for a new trial, stated, was on account of newly discovered evidence, to wit, that of one William Ball, whose affidavit is brought into the record, with others, by a bill of exceptions. The substance of Ball’s affidavit is that for three years before the collision heretofore referred to, and for' about a year thereafter, he worked with appellee, and was brought into continuous association with him each working day; that plaintiff prided himself on his skill in wrestling, and about three months prior to the date of said collision “engaged in a friendly trial of skill” with affiant, occupying three or four minutes; that affiant threw plaintiff, and fell upon him “very hard;” that his knee struck the abdomen just above plaintiff’s groin, rendering him unable to regain control of himself for some moments, and causing great pain, of which, and its continuance, he thereafter complained; that about two and a half or three months after said collision plaintiff attempted to start a bank car of coal -with an iron book used for tbat purpose, but was unable to do so, laid down tbe hook be was using, and said, “Bill, I believe I bave broken something loose in my bowels, it feels just like it did tbat day in tbe engine room.”

Appellee’s learned counsel in argument say: “If it can be said that the testimony of William Ball is something more than cumulative, then it was shown by counter affidavits that be was such a monumental liar that no one could believe him.” The weight of evidence is for tbe jury. When tbe testimony on both sides is delivered in court and subjected to tbe scrutiny there possible, the truth is more likely attained than when only part of the testimony is presented. It might be tbat if Ball bad testified on tbe prior trial a different result would bave followed. Jackson v. Swope, 134 Ind. 111-114. Tbe affidavits show tbat be denied knowledge of tbe ease until after tbe trial, when be says for tbe first time be spoke about it in tbe presence of persons not connected with tbe appellant company. Tbe courts are slow to grant new trials on account of newly discovered evidence for reasons tbat bave been fully stated. Hines v. Driver, 100 Ind. 315; Morrison v. Carey, 129 Ind. 277; Elliott, App. Proc., §857. Tbe statute is, however, tbat a new trial may be granted in tbe following cases: “Seventh. Newly discovered evidence, material for tbe party applying, which be could not, with reasonable diligence, bave discovered and produced at tbe trial.” §568 Burns 1901. Tbe evidence referred to relates to an independent, distinct, and material fact. Counsel has not suggested anything appellant should bave done to secure tbe evidence that it did not do, and nothing occurs to tbe court. Blackburn v. Crowder, 110 Ind. 121.

Judgment reversed, and cause remanded, with instructions to sustain motion for new trial, and for further proceedings.