15 Ga. App. 16 | Ga. Ct. App. | 1914
The action was for $15,000 damages, on account of personal injuries. The verdict was for $8,750. The defendant introduced no testimony; and in the argument here it was stated that, since there was a collision of two of the defendant’s trains, liability for slight injury to the plaintiff was admitted, but it was insisted that he suffered no serious or permanent injury. In addition to the general grounds of the motion for a new trial, the defendant asked that the verdict be set aside for the reason that material evidence was discovered after the trial, which would and should produce a different result upon another investigation of the case. This ground is strongly pressed upon our consideration, and it is insisted that the refusal to grant a new trial upon this ground was an abuse of discretion.
The evidence submitted by the plaintiff and his attending physician, as to the gravity and permanence of his injuries, fully supported the verdict, and the contention that the amount, of the verdict iff excessive can not be sustained, for, under the evidence, the jury would have been authorized to award that amount for pain and suffering alone. In addition to this there was evidence that the plaintiff’s earning capacity had been seriously impaired. Certain general propositions in reference to motions for new trial based upon the ground of newly discovered testimony are code law and axiomatic. In the first place, motions for a new trial upon the ground
In the present case the newly discovered testimony is confined to the single point of attempting to show that the plaintiffs injuries were not as serious as stated by himself and his witnesses, but were in fact trivial and insignificant. In support of the motion one witness testified that he said to the plaintiff on meeting him in a barber-shop shortly after the collision, that he thought the plaintiff was hurt in the wreck, and the plaintiff replied that he had not received any injury to amount to anything. Another witness testi fied that he accompanied the plaintiff on a “Trip to Mars,” an amusement device in which the participants were carried up a confusing revolving stair, and thrown down an inclined plane on a cushion, about .twenty feet; it being a contention of the defendant that no person injured as the plaintiff claimed to have been injured could take this “Trip to Mars” without visible and audible expressions of pain. A third witness testified by affidavit that he was employed, after the trial, as a Pinkerton detective, and “shadowed”
We do not know that this proposition has ever been presented.in the exact form in which it is here raised, but we can not concur in the view entertained by counsel for the plaintiff in error. The motion for a new trial upon the ground of newly discovered testimony must be addressed to the sound legal discretion of the court, and the court alone must be the trior of the weight and credibility of the testimony. The movant has had one fair trial, and the judge, in exercising his discretion, must take into consideration the maxim that is to the interest of the commonwealth that at the proper time there shall be an end of litigation, It has uniformly
The question as to whether the judge could legally have directed a verdict, if the evidence submitted upon the motion for a new trial as newly discovered had been introduced on a trial, is foreign to the inquiry, because the complaining party has had one trial. He was entitled to this as a matter of right, while the grant of a second trial, where the motion for a new trial is not based upon any error in the first by which the movant was deprived of a right, but is for relief from fortuitous adverse circumstances, is a matter of discretion, if not indeed a matter of grace. In the trial the- complaining party is entitled by law to have every issue of fact submitted to the jury, and the judge is not permitted to interfere in even the slightest degree in the ascertainment of the truth; but in determining whether another trial shall be accorded to the litigant, who has already had his constitutional right, the court is charged with the rights of both parties alike, and should not set aside the finding already reached, and in which the prevailing party has a vested right, unless a different result is not only probable but proper.
Judgment affirmed.