O'Rourke v. Vennekohl

Van Fleet, J.

Action for damages for personal injuries. Verdict and judgment were for plaintiff, and from the judgment and order denying a motion for new trial the defendants appeal.

1. The court refused the following instruction requested by defendants: “If you shall find that the plaintiff has willfully misstated any fact concerning which she has been interrogated, then her testimony in ■other respects should be distrusted, and the jury may in such case disregard the whole of her evidence. So, also, if you shall find that any witness examined upon behalf of the plaintiff has willfully misstated any fact concerning which he has been interrogated, then the testimony of such witness in other respects should be distrusted, and the jury may in such case disregard the whole of the evidence of such witness. Where a witness gives willfully false testimony the jury should treat all his testimony with distrust and suspicion, and reject all, unless convinced, notwithstanding the base character of the witness, that he has in other particulars sworn to the truth,” but instead charged the jury on this point that “A witness false in one part of his testimony is to be distrusted in others.” While we think the instruction as requested was proper and should have been given, .nevertheless we are unable to hold that there was error in the action of the court. In refusing the instruction as asked the court charged the jury upon the point in the language of the statute, and this it has been repeatedly held was sufficient. (People v. Treadwell, 69 Cal. 238, and cases there cited.)

2. After a careful examination of the record we are unable to say that the court erred in denying the motion for a new trial. The motion was based upon the ground of newly discovered evidence. The granting of a new trial upon this ground is largely matter of discretion, an exercise of which will not be disturbed by this court except in case of abuse clearly disclosed by the record. It should not be granted in any case where the party has not shown due diligence in discovering and producing the evidence, nor where the evidence is purely cumulative, nor unless the newly discovered evidence is such as to render a different result upon a retrial probable. Testing the showing made in this case by these rules, we certainly cannot say that there was any abuse of discretion in denying the motion. The new evidence was largely, if not entirely, cumulative, and conceding that appellants’ view of the law be correct, that a new trial should not be refused merely because the evidence is cumulative in a case where the cumulation is sufficiently strong to render a different result probable, we cannot say that the record presents such a case. The new evidence is that of but one witness, who, like several who testified at the trial, witnessed the accident; what the probable result of his evidence if produced before the jury would be, when viewed in connection with all the other evidence in the case, was a question which the lower court, with all the witnesses and facts of the case before it, was much more competent to determine than this court can possibly be.

We find no error in the record, and the judgment and order denying the motion for a new trial are affirmed.

Harrison, J., and De Haven, J., concurred.