60 Tenn. 195 | Tenn. | 1873
delivered the opinion of the Court.
This suit was commenced by Michael Connor against J. H. Tabler, to recover damages in consequence of the negligence of Tabler’s employees in blasting rock, whereby Connor’s leg was broken. The action was by summons and ancillary attachment; property valued at $1,000 was attached and replevied, under bond, in pursuance of the Statute. Defendant plead the general issue, and also specially, that his employees were skilful and careful workmen, and guilty of no negligence, on which plea there were issues.-
The motion for a new trial was overruled; and the main question now is, whether this was error?
There are well settled rules for granting new trials for newly discovered evidence, by which the present case must be governed. 1. If a party omits to procure evidence, which with ordinary diligence he might have procured, in relation to those points, on the first trial, his motion for a new trial for the purpose of introducing such testimony, shall be denied. 2. If the newly discovered evidence consists merely of additional facts and circumstances, going to establish the same points which were principally controverted before,
There was conflict in the evidence in the present case, on two points; first, whether the signal for firing the blast was given; and, second, if it was, whether Connor heard it? Connor was examined as a witness, and swore directly that if any signal was given, he did not hear it. Several witnesses detailed facts and circumstances going to show that he did hear it, and that his standing still and not moving further off was voluntary and negligent.
It appears that Connor’s deposition was taken about two years before the trial of the cause. In his deposition he states that Dr. Baily attended on him while he was confined with his broken leg. It appears, therefore, that for two years defendant knew that Con-nor had sworn that he did not hear the signal, and that Dr. Baily waited on him during his confinement. It is not clear that it was not negligence in defendant to fail to seek for evidence from Connor’s physi
Again, the affidavit of Dr. Baily details Connor’s conversations while confined. This kind of testimony is always received with some degree of allowance; but his testimony goes to the point whether Connor heard the signal and failed to move away, from negligence — the same point on which defendant had examined several witnesses on the trial. Cumulative evidence means additional evidence to support the same point, and which is of the same character with evidence already produced. To say the least of the newly discovered evidence, it appears to us that it makes a case in which we cannot interfere with the exercise of the discretion of the Circuit Judge in refusing a new trial.
As this is the only question about which it is necessary for us to decide, the judgment will be affirmed.