Houston & Texas Central Railway Co. v. Forsyth

| Tex. | Jul 1, 1878

Moore, Associate Justice.

The only proposition insisted upon hy appellant for the reversal of this judgment, is that the court erred in overruling the application for a new trial, sought for in the court below, on the ground of newly-discovered evidence.

It must be admitted that greater deference should be given in an appellate tribunal to the action of the lower court on a motion of this kind, than on an application for a continuance; both of which, no doubt, are, in a degree, necessarily addressed to the discretion of the court in which they are made. But while this is the case, it is well settled, that the right to a new trial on this ground is not exclusively within the discretion of the court of the first instance; and it must now be regarded as a settled rule of practice in this court, to revise the action of the District Court overruling the motion, where the newly-discovered evidence, when considered in connection with the facts developed on the trial, is clearly material to the issue, and might probably produce a different result on another trial; and where the evidence came to the knowledge of the applicant after the trial, without a want of due diligence on his part in not sooner discovering it, and where the newly-discovered evidence is not of a character for which the courts, by well-established practice, do not in general grant new trials. (Madden v. Shapard, 3 Tex., 50; Edrington v. Kiger, 4 Tex., 89; Sweeny v. Jarvis, 6 Tex., 38; Welch v. Nasboe, 8 Tex., 189" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/welch-v-nasboe-4887557?utm_source=webapp" opinion_id="4887557">8 Tex., 189; Ables v. Donley, 8 Tex., 331" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/ables-v-donley-4887595?utm_source=webapp" opinion_id="4887595">8 Tex., 331.)

The application in this case, it appears to us, fully meets and satisfies the most stringent conditions which have been laid down in any of the former decisions of this court on the subject. The motion was not made upon the unsupported affidavit of appellant, or its acting president, whose official duty it was to see to the defense of the case; but the affidavit of the witness whose testimony was desired accompanied the motion, and states, not only the facts to which he would testify, but also shows that diligence had been exercised in the preparation of the case for trial, and that the newly-discovered evidence did not come to the knowledge of appellant until after the trial in the District Court, and that it could not have done so unless inquiry had been made to the extent of asking every one with whom the plaintiff might have conversed, whether he had stated how and under what circumstances he had sustained the injuries upon which the action is founded. Evidently, such a requirement would not call for the exercise of diligence in preparing a case for trial, but would demand, practically speaking, an impossibility, unless there were circumstances known tending to show the necessity of such inquiry, and pointing to the particular persons from whom such information should be sought.

It cannot be doubted that the alleged newly-discovered evidence is material to the issue upon which the case turned; and if no other testimony should be adduced upon another trial than that stated by counsel in their brief, it may, and probably will, have an important bearing upon the decision of the case on another trial.

It is argued, by appellee’s counsel, that the court did not err in overruling the motion, because the alleged newly-discovered evidence could not, if it "had been before the jury, have changed or affected the result; for, as he insists, “the physical facts” bearing upon the question decided demonstrated that appellee was injured in the manner and under the circumstances stated by him, and not as desired to be shown by this testimony. A motion for a new trial may, no doubt, be met by affidavits clearly and satisfactorily impeaching the credibility of the witness relied on to testify to the alleged newly-discovered evidence. (Conradt v. Sixbee, 21 Wis., 388; Williams v. Baldwin, 18 Johns., 489" court="N.Y. Sup. Ct." date_filed="1821-01-15" href="https://app.midpage.ai/document/williams-v-baldwin-5474373?utm_source=webapp" opinion_id="5474373">18 Johns., 489; Fleming v. Hollenbaek, 7 Barb., 276; Merk v. Gelzhaeuser, 50 Cal., 632; Aiken v. Bemis, 3 Wood. & Min., 353.) And it cannot be questioned, if it was shown by admitted or unquestionably established “ physical facts,” that the desired testimony could not be true, the motion should have been overruled. But no such admitted or clearly-established physical® facts have been pointed out by counsel in .their brief, or found by us in the record. The proposition of appellee’s counsel is not supported or warranted by admitted or established physical facts, or any other character of facts, and is only inferable by them from the nature of appellee’s injuries, and their conclusions or deductions as to appellee’s position when the injuries were inflicted, drawn from their knowledge or impressions as to the relative proportion of different parts of the tender, by the backing of which appellee was injured. But evidently this is not a matter of which the court can take judicial cognizance; and, if believed to be of any weight in determining the point to be decided, it should have been proved as any other fact.

Hor can it be maintained that the newly-discovered evidence is cumulative, and therefore not such as to warrant the granting of a new trial. Cumulative evidence, as has been often said, is additional evidence of the same kind to the same point. Although evidence tends to prove the same proposition as that previously introduced, yet it is not cumulative when it is of a different character, and merely tends to prove the former proposition by proof of a new and distinct fact. “ The meaning of the rule,” says Judge Woodbury, in Aiken v. Bemis, 3 Wood. & Min., 358, “cannot be to exclude, ab cumulative, newly-discovered evidence of subordinate points or facts bearing on the general question; for, in such a view, no new trial for new evidence could ever be obtained, all new evidence relating, as it must if it be pertinent, to the general ground or general fact put in issue before. But it must mean that new evidence to a subordinate point or fact, is not competent where the subordinate point or particular fact was before gone into; because it is then cumulative or additional as to that fact.”

Here the newly-discovered evidence was declarations or admissions of appellee. Ho evidence of this kind had been given on the trial. As there was not, it cannot be said that it was cumulative, but must be held to be original evidence to establish a new fact, the admission ofoappellee, which fact tends to establish the defense relied upon by appellant. (Gardner v. Mitchell, 6 Pick., 114; Chatfield v. Lathrop, Id., 417; Parker v. Hardy, 24 Pick., 246; Waller v. Graves, 20 Conn., 311; Gray v. Harrison, 1 Nev., 509" court="Nev." date_filed="1865-07-01" href="https://app.midpage.ai/document/state-v-logan-6667611?utm_source=webapp" opinion_id="6667611">1 Nev., 509; Warren v. Hope, 6 Me., 479; Thompson v. Gray, 63 Me., 228.)

It is not to be gainsaid, that it has been often held, that a new trial will not be granted on account of newly-discovered evidence, where the object of such testimony is merely to contradict or impeach the credit of a witness who testified upon the trial. But it is equally well settled, that this objection is inapplicable, where the testimony goes to prove facts material to the issue in the case, though it may also tend to contradict or lessen the credit of opposing witnesses. This, undoubtedly, is, to some extent, the effect of all testimony tending to support the case of the one side, and therefore to disprove that of the other. (Oakley v. Sears, Bobert, 1 (N. Y.,) 78 ; Hill, on New Trials, sec. 19, p. .385.)

For the error of the court in overruling appellant’s motion for a new trial, the judgment is reversed and the cause remanded.

Beversed and remanded.