Weiss v. Chicago & Milwaukee Electric Railway Co. ( 1922 )

Rosenberry, J.

The jury found that the motorman failed to exercise ordinary care in the. manner in which he operated the defendant’s car and that the car was traveling at the time at the rate of eighteen to twenty miles per hour. The defendant moved to change the answer to the first question and that the court find that the speed of the car did not exceed seven to eight miles per hour and for judgment upon the verdict as amended, the principal contention of the defendant being that no negligence on the part of the defendant was shown. There is a strong conflict in the evidence. The testimony of the plaintiff’s father is far from satisfactory, but that is not all of the testimony in the case, and we are not able to say that there is not sufficient credible evidence to support the verdict.

After judgment there was a motion for new trial on the ground of newly-discovered evidence. It appears that subsequent to the trial of this case in civil court the case of the father, Louis Weiss, for damages sustained by him in the same collision was tried in the circuit court and in that court the defendant was successful. Upon that trial one Louis Froemming was produced and testified that he was a passenger on the street car in question with which the automobile collided; that he rang the bell as a signal for. the car to stop at Virginia street, where he proposed to alight to go to his place of employment; that after ringing the bell the cár slackened its speed; that at the time of the collision it was going at a slow rate of speed; that he saw the automobile go around the corner; that the street east of the south-bound track to the east rail of the north-bound track was entirely free from obstructions and that he saw the automobile collide with the east side of the street car.

In denying the motion for a new trial the trial court said:

“The only testimony that would be available in this case would be as to the speed of the car when he got up to leave the car preparatory to alighting at Virginia street, which the court is of the opinion is merely cumulative, as these facts were,testified to by several of the witnesses on behalf of the defendant on the first trial. The testimony of the witness as to his observation of the conduct of the driver of the automobile would be entirely irrelevant and of no force or effect, as the question of his negligence is now eliminated from the case.”

The court was no doubt in error in making the statement that the evidence of the witness as to what happened subsequent to the time that he arose to leave the car would be irrelevant upon the question of defendant’s negligence. This error grew out of the fact that the testimony was more relevant on the issue of contributory negligence, but it was also material and relevant upon the issue of the defendant company’s negligence. It was cumulative, however, other witnesses having testified to substantially the same facts.

Granting or refusing a motion for new trial upon the ground of newly-discovered evidence is a matter largely in the discretion of the trial court, and we cannot say that there was an abuse of discretion.

By the Court. — Judgment affirmed.