Texas & New Orleans Railroad v. Scarborough

Mb. Chief Justice Gaines delivered the opinion of the court.

When we granted the writ of error in this case we were of the opinion that all the assignments of error were correctly overruled by the Court of Civil Appeals, save those which complained of the court’s action in overruling the motion for a new trial. We are still of that opinion, and therefore deem it unnecessary to discuss of the except those last mentioned. .

It is claimed that a new trial should have been granted on ground of newly discovered evidence as set up by plaintiff in error’s amended motion for a new trial.

The verdict was returned and the judgment entered on the 16th day of May, 1906, and the ámended motion for a new trial was filed on the 26th day of the same month, which was the last day of the term as fixed by law. (Law 1903, p. 8.)

How in order to obtain a new trial on the ground of newly discovered evidence, it must appear by the motion that diligence to procure' the testimony has been used and that it could not be obtained in time for the trial; that the evidence is not merely cumulative, and that upon a new trial it would probably change the result. It seems to us that the showing as to diligence to discover the testimony before the trial was sufficient. The affidavits of Jasse show that he would testify that he saw the accident that resulted in the death of Scarborough and that there was no one standing in a place of danger when the accident occurred. "This is so variant to the testimony of a cloud of witnesses who gave testimony as +o suggest that he was testifying as to a different transaction. The witnesses upon the trial who gave evidence as to the man being in danger testified to the facts in such detail, as to show, that they spoke the truth or wilfully testified falsely. They could not have been mistaken as to the main facts. The one fact about which the proposed witness is “very positive” is that the deceased was not struck by the swinging door of the car. It was testified to by the defendant’s own witness Abbott “that the car caught and rolled him some; but that the door stuck out about that much further than the car, about an inch and a half or two inches, and that the door is what mashed him.” The .proposed testimony is to the effect that he did not hear Scarborough halloo to anyone and did not see any person in danger near the track. Of course, if he was in a position to see and hear, and he did not see or hear, that is a strong circumstance to show that the fact not seen or heard did not exist. But there is always room for the conclusion that he may not have seen or heard though the facts did exist, especially is this the case where it appears that the transaction was of short duration and nothing is shown calculated to have called the witness’s attention to the circumstances. It may therefore be seriously doubted whether it could be said that the proposed testimony would have led to a different result upon-another trial.

The same may be said as to the proposed testimony of Magadieu, *440 But in reference to the newly discovered evidence of the latter, the plaintiff in error is in a worse attitude. It is to be remembered that Magadieu’s affidavit is not taken. We have merely the affidavit of two witnesses as to what his testimony would he, with a reason given probably sufficient why his affidavit was not taken. But we know of no rule of practice that would have precluded the plaintiff in error from summoning him as a witness on the motion for a rehearing and forcing him to state upon the stand what he knew about the case. Should not this have been done?

But there is still another consideration. We have seen that the amended motion in which the newly discovered evidence was set up was not filed until the 26’th day of May, 1906, and that the term of the court expired by limitation of law at twelve o’clock p. m. of that day. The agents of the plaintiff in error were apprised of what their evidence should be, a very few days after the trial, which ended on the 16th day of the month—ten days before the amended motion was filed. At what hour the motion was. filed the record does not disclose. Now we think the amendment should have been filed as soon as practicable after the evidence was discovered—so as to give defendants in error an opportunity to inquire into the facts and to file counter-affidavits questioning, not only the diligence, but also the accuracy of the proposed testimony for which the new trial is asked. This is especially true as to Magadieu, for if the defendants in error had had the opportunhy to confer with Magadieu, they could possibly have obtained from him an affidavit impeaching the accuracy of the statements contained in the affidavits of plaintiff in error’s affiants with respect to him.

Now let us suppose that the amended motion for a new trial had been filed but a short time before the court adjourned and before it would have adjourned by operation of law, would not the court have been justified in overruling it, because it afforded the counsel for the other side no opportunity to meet it? We think an affirmative answer should be given to the question. There is nothing in the order overruling the motion to show upon what ground the court acted. Now all presumptions must he indulged in favor of the court’s ruling. We think, therefore, we should presume that the court overruled the motion because it was filed too late. We think a party should not only be diligent in discovering testimony, but also diligent in making use of it when discovered.

We therefore conclude that the motion for a new trial was properly overruled and no other error being apparent the judgment is affirmed.

Affirmed.