Atlanta Rapid Transit Co. v. Young
| Decision Date | 13 March 1903 |
| Citation | 43 S.E. 861,117 Ga. 349 |
| Parties | ATLANTA RAPID TRANSIT CO. v. YOUNG. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. On an application for a new trial on the ground of newly discovered evidence, the movant must exclude any idea of laches, and show affirmatively that by the exercise of ordinary diligence the newly discovered evidence could not have been procured in time for use on the trial.
2. Ordinary diligence is all that is required, by the Code, of a movant for a new trial in the ascertainment of "newly discovered" evidence. The opinion of the majority of the court requires extraordinary diligence. Under the facts disclosed by the record, the movant showed ordinary diligence. The newly discovered evidence would certainly change the result and prevent a robbery under the forms of law, and the trial judge should have granted a new trial.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Ed Young against the Atlanta Rapid Transit Company. Judgment for plaintiff. Defendant brings error. Affirmed.
Rosser & Brandon and Simmons & Pettigrew, for plaintiff in error.
Felder & Rountree, for defendant in error.
The only question argued before us was the error of the judge in refusing a motion for a new trial because of newly discovered evidence. It appeared that the trial of an action for personal injuries in the city court of Atlanta lasted for four days, and that on the first day of that trial the plaintiff testified that the injury occurred at the intersection of two streets in the city, and was witnessed by certain persons who were seated on the front porch of one of the houses immediately in front of the place where the accident happened--stating, however, that she did not know their names. After the trial the defendant procured from these eyewitnesses affidavits as to facts which were not strictly speaking, impeaching, but new, independent facts material to the defendant's contention, and which, while contradictory of facts testified to by the plaintiff, might possibly have changed the result. In neither of these affidavits is it stated, nor does it appear elsewhere in the record, where the witnesses were during the four days of the new trial. The only allusion to their whereabouts is in an affidavit of an officer of the defendant that the witnesses were not in the state of Georgia at the time the said case was tried. This statement on the part of the officer may have been true, to the best of affiant's knowledge and belief and yet that information may have been derived from hearsay in fact, as the officer appears to have been in Atlanta during the trial, it must have been hearsay, for no one in Atlanta was in a position to know positively that the witnesses were at the same time out of the state. But if the officer, of his own knowledge, actually knew where the witnesses were, if he himself was out of the state during the period of the trial, and therefore in a position to state positively that the witnesses were not in the state of Georgia, it would then have been not only possible, but proper, for him to state where the witnesses were, in order that an issue could have been raised as to whether it was possible to have secured their attendance. They may have been in an adjoining state, on the line of a railroad in reach of a telegram or long-distance telephone message, and, while they could not have been compelled to attend, a request to that effect might have been complied with. In other words, by exercising ordinary diligence their attendance might have been secured, and, if so, the trial, which is otherwise practically conceded to have been free from errors, would have been final, and a new hearing obviated. Of course, if they had declined to come from a neighboring state on being requested so to do, their refusal would in no way have affected the question of diligence on the part of the movant, for it had done all it could do. If the officer knew where the witnesses were, it ought to have been shown why no attempt was made to have them present. The whereabouts of the witness at the time of the trial may shed light on the question of diligence, but the real point was not where they were, but, could their attendance have been secured? Where the record fails to show that it was impracticable to communicate with them, or to have had them present in the exercise of ordinary diligence, the question as to laches is left open.
It was also contended that, inasmuch as these witnesses lived in the house immediately opposite the place of the accident, and as the petition gave notice as to where the injury occurred proper diligence required that inquiry should have been made in the neighborhood, with a view of discovering whether any person living there or near by had seen the occurrence. We do not lay down any rule on this subject, for it is a matter to be passed on in the first instance by the trial court. It is for him to say, as a trior of the question of fact, whether diligence has been exercised; and where, as in this case, he seems to have found that...
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