Alderson v. Larson

Dec 11, 1911
Reporters:
, ,
Before:
Haney
•HANEY, J.

This is аn appeal by the plaintiff from an order granting defendants’ application ‍‌​​​‌​​​‌​‌‌​​‌​​​​‌​‌​‌‌‌‌‌​​​​​‌​​​‌‌​‌​‌‌‌‌‌​‍for a new trial on the ground of newly discovered evidence.

[1] A new tidal may be granted on the ground of “newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discoverеd and produced at the trial.” Rev. Code ‍‌​​​‌​​​‌​‌‌​​‌​​​​‌​‌​‌‌‌‌‌​​​​​‌​​​‌‌​‌​‌‌‌‌‌​‍Civ. Proc. § 301, subd. 4. Such an application is addressed to the discretion of the trial court. Its decision thereon will not be reversed in absence of manifest abuse of discretion. Wilson v. Seaman, 15 S. D. 103, 87 N. W. 577; State v. Coleman, 17 S. D. 594, 98 N. W. 175; State v. Colvin, 24 S. D. 567, 124 N. W. 749.

[2] A stronger case must be made to justify reversal when the ‍‌​​​‌​​​‌​‌‌​​‌​​​​‌​‌​‌‌‌‌‌​​​​​‌​​​‌‌​‌​‌‌‌‌‌​‍order grants than when it refuses a new trial. Gotzian & Co. v. McCollum, 8 S. D. 186, 65 N. W. 1068; Grant v. Grant, 6 *371S. D. 147, 60 N. W. 743; Hodges v. Bierlein, 4 S. D. 258, 56 N. W. 811.

[3] The actiоn is for personal injuries. The verdict was for $i,ooo. On June 22, 1910, the plaintiff and her young son were sitting in a buggy on a street in Sioux Falls, when a team drawing a heavy wagon, owned by the defеndants, ran away. The wagon collided with the plaintiff’s buggy, causing it to collapse, and, аs - she alleges, causing the plaintiff severe injuries, from which, it was claimed, she had not recovered at the time of the trial. Plaintiff’s evidence disclosed no external injuries, but tended to prove that the plaintiff, at the time of the trial, was suffering from traumatic nеurasthenia caused by the shock of the accident. The affidavits read in support of the application for a new trial disclose that two young women were riding with the plaintiff and her husband in a surrey on the night of July 23, 1910, one month and one day after the accident alleged to have been the sole cause of the plaintiff’s condition, when the surrey, coming in contact with a pile of sand, Was overturned and all its occuрants were thrown violently upon the ground. The circumstances of this accident and its apparent effect ‍‌​​​‌​​​‌​‌‌​​‌​​​​‌​‌​‌‌‌‌‌​​​​​‌​​​‌‌​‌​‌‌‌‌‌​‍upon the plaintiff are minutely described by each of thе young women in her affidavit. It appears from their affidavits that neither the defendants nor their attorneys knew of this second accident until after the trial of this action. The yоung women who were riding with the plaintiff state that they were rerpiested by the plaintiff’s husband аnd mother, in the plaintiff’s presence, to not mention the accident, as it would, if known, injuriоusly affect the pending claim for damages caused by the previous accidеnt. One of the physicians, who was a witness for the plaintiff on the trial, states in an affidavit rеad in support of the application for a new trial that the accident described in the affidavits as having occurred July 23d would be far more likely to cause the traumatic neurasthenia described by the evidence on the trial than the accident of June 22d. That the plaintiff was thrown from a surrey on July 23d is admitted in affidavits read by the plaintiff on the hearing of defendants’ application. Evidence concerning such accident, if known to the defendants at the time of the trial, certainly would *372have been cоmpetent and material for the purpose of showing that the plaintiff’s nervous condition was caused by such accident. And, notwithstanding the evidence on the trial may have conclusively shown that traumatic neurasthenia resulted ‘from the first accident, evidence of the second accident would have been competent and mаterial for the purpose of determining the proper measure of the plаintiff’s recovery. In fairness to the court, jury, and expert witnesses evidence of the second accident, calculated, as it was, to account in whole or in pаrt for the plaintiff’s condition, should have been considered if obtainable. Defendants were not in the remotest degree ‍‌​​​‌​​​‌​‌‌​​‌​​​​‌​‌​‌‌‌‌‌​​​​​‌​​​‌‌​‌​‌‌‌‌‌​‍responsible for the second accidеnt, and should not be required to compensate the plaintiff for amf detriment causеd thereby. The learned trial court was at liberty to believe, not only that this material еvidence could not, with reasonable diligence, have been discovered, but thаt its discovery by the defendants before the trial was prevented by the active intervеntion of the plaintiff’s husband and mother, with her knowledge and consent. That consideration of this newly discovered evidence would be likely to influence the jury on a second trial is apparent. Defendants’ application met all the requirements of the statute. There was no abuse of discretion.

The order appealed from should be affirmed.