Maynell v. Inhabitants of Sullivan , 1877 Me. LEXIS 57 ( 1877 )

Walton, J.

This is an action to recover damages claimed to' have been received through a defect in one of the highways in the town of Sullivan. The jury returned a verdict in favor of the town. The plaintiff moves for a new trial upon three distinct grounds; first, because the verdict is against evidence; second, upon the ground of newly discovered evidence ; third,' because the testimony of some of the defendants’ witnesses was false in relation to a material fact, and took her by surprise.

It is settled law that a verdict will not be set aside, on the ground that it is against evidence, unless it is clearly so.

It is equally well settled that a new trial will not be granted, on the ground of newly discovered evidence, unless due diligence was used to discover the evidence before the trial.

It is also a well settled rule of pr actice that a new trial will not be granted, upon the ground that the party moving for it was taken by surprise at his adversary’s evidence, unless due diligence was used to guard against the surprise; nor unless relief was sought at the earliest opportunity. If a party is unexpectedly met by testimony, which is false, and the testimony relates to a matter, the truth of which can be readily ascertained, if sufficient time is had, his first duty is to move for a postponement of the trial, or a continuance of the cause ; and if, instead of doing this, he voluntarily elects to let the case go to the jury, and thus takes the chance of a verdict in his favor, he cannot afterward make the surprise the ground for obtaining a new trial.

A careful examination fails to satisfy us that the verdict in this case is clearly against the weight of evidence. On the contrary we think it fairly preponderates in favor of the verdict.

Nor are we satisfied that the evidence, which it is claimed has been discovered for the first time since the trial, might not have been ascertained, by the use of reasonable diligence before the trial. It relates to the condition of the planking upon the bridge where the plaintiff was injured; and especially to the length of the bevel or ¿hamper upon the ends of the planks. As the planks had been in substantially the same condition for a long time before •the accident, and so remained at the time of the trial, no reason is perceived why the plaintiff could not have produced at the trial a sufficient number of witnesses to show what the actual condition of the planking, at the time of the accident, was, and with as much certainty as human testimony could establish any fact.

And if she was taken by surprise by the testimony of the defendants’ witnesses upon that point, she should-have moved at once- for a postponement of the trial, or a continuance of the cause, to enable her to procure witnesses to contradict them. Not having done so, she is estopped to allege surprise as the ground of a new trial. Having voluntarily elected to take the chances of a verdict in her favor with such evidence, she must abide by the result. Motions overruled.

Judgment on the verdict.

Appleton, C. J., Daneorth, Peters and Libbey, JJ., concurred.