100 Ky. 413 | Ky. Ct. App. | 1897
delivered the opinion of the court:
April 14, 1892, a judgment was rendered in favor of the Whitley County Court against the Louisville & Nashville E. E. Co. for $10,000, and, on appeal to this court, was affirmed.
This is an action for vacation of said judgment and for a new trial upon the ground of newly-discovered evidence; and the inquiry is whether that evidence is material for the party applying and could, with reasonable diligence, have been discovered and produced at the trial.
As appears from the record of the original action, made part of this, the railroad bed of appellant was located and constructed on the side of a certain hill in Whitley county, below a public highway, and, as a
What appellant alleges in this action is that since the trial of the original action the Whitley County Court has, by the expenditure of $200 or $300, placed pipes under the highway so as to conduct away the water of a spring previously hidden, and, as the result, sliding of earth has been stopped. They also say there is now exposed a rock bluff above the loose earth, the existence of which, not hitherto known, shows the entire practicability of preserving the highway at comparatively small cost.
Notwithstanding appellant alleged and proved on the trial of this action said facts, the lower court decided the evidence offered by it “in support of its allegation of newly-discovered evidence was and is not, within the meaning of the law, newly-discovered evidence.”
In our opinion newlv-discovered evidence was not intended to be confined merely to testimony given or that might be given by living witnesses, but.applies to any character of evidence, competent and allowable, tp illustrate and determine an issue of fact involved.
The unusually large verdict the Whitley County Court obtained against the Louisville & Nashville R. R. Co. was rendered because the jury believed, and were induced by the evidence to believe, the highway could not be reclaimed and preserved without the expenditure of that sum of money. If the newly-discovered evidence shows it to be practicable to accomplish such object at greatly less than that amount, the Louisville & Nashville R. R. Co. should not be required to pay, and the Whitley County Court can not, in justice and good conscience, ask for such sum.
In our opinion the new trial ought to have been granted, and the judgment denying it is reversed and cause remanded for proceedings consistent with this opinion.