126 Ky. 556 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
This is an action to obtain a new trial upon the ground of newly discovered evidence. On the original trial, in which appellees obtained judgment for damages growing out of the death of their testator, caused by the negligence of appellant in failing to give proper warning of the approach of its train to the public crossing at which he was struck, 'three defenses were made: First, that Ueltschi was not killed at a public crossing; second, that he was guilty of such contributory negligence as defeated a recovery ; and, third, that the appellant was not guilty of any negligence. In the course of the trial a witness named Garland McDonald testified in substance that he was standing in the door of a blacksmith’s shop and saw decedent as he approached the track, and when within a few feet of it, at the point where he was killed, stop and look up and down the track. It is stated in the petition, which was filed in December, 1906, that appellant discovered a few months before that McDonald was not in the shop or in the vicinity where he claimed to have been, and did' not see or know anything about how the accident occurred ; that he was induced by the payment of money to make the statements given in evidence by him, which were in every particular false. The lower court, after hearing- evidence introduced for and against the petition, dismissed it, and appellant prosecutes this appeal.
The evidence as to whether McDonald was or not at Ueltschi’s on the day he was killed is very conflict
New trials are reluctantly granted; and, when disputed matters have been fully litigated, the courts will not reopen a case for the purpose of enabling the defeated party to introduce new evidence, unless the reasons why it should be done are very strong, and
Another reason for denying a new trial is that here the attempt is to impeach the testimony of a witness who testified on the original trial. It is not claimed that any new evidence bearing upon the substantive issues involved in the trial has been discovered; but the argument is made that the evidence of a witness who testified in behalf of the successful party was false, and a new trial is sought to afford opportunity to contradict the testimony given by this witness. So far as our investigation goes, we have not been
A question of practice has been raised that we will dispose of. When the petition for a new trial was filed, an appeal on behalf of plaintiff from the judgment sought to be vacated was pending in, this court, and the question is made as to the right of a party to institute and maintain an action to set aside a judgment while he is in another proceeding and court seeking to have it reversed. The Code limits the time in which an action to vacate a judgment on the ground of newly discovered evidence must be made; and if a party who has prosecuted an appeal from a judgment' against him could not, pending the appeal, institute his action in the lower court to have a new trial, and was obliged to wait until his appeal had
Perceiving no error, the judgment must be affirmed.