Burlingame v. Cowee

• Decision Date: 15 December 1887
• Citation: 12 A. 234,16 R.I. 40
• Parties: BURLINGAME v. COWEE, Town Treasurer.
• Court: Rhode Island Supreme Court

12 A. 234

16 R.I. 40

BURLINGAME

v. COWEE, Town Treasurer.

Supreme Court of Rhode Island.

December 15, 1887.

On defendant's petition for a new trial.

Francis W. Miner and William G. Roelker, for plaintiff. Nicholas Van Slyck, Charles H. Page, and Franklin P. Owen, for defendant.

DURFEE, C. J. This is an action to recover damages for injuries sustained by the plaintiff in the town of Scituate in consequence of the defective condition of a bridge in that town. Some of the rails which guarded the side of the bridge were gone, and the plaintiff, while crossing the bridge in the dark, stepped aside, on a place where they had gone to avoid a carriage which he heard approaching, and being unable to see where he was, stepped off the bridge and fell down the side, injuring his spine. The jury returned a verdict in his favor for $4,000. The defendant petitions for a new trial, one ground assigned, and the only ground which is pressed, being that since the trial he has discovered, new and material testimony. The new testimony, as disclosed by the affidavits, applies only to the damages recovered, which this defendant contends are excessive.

In Schlencker v. Risley, 3 Scam. 483, and in Ham v. Tayler, 22 Tex. 225, it was held that when the newly-discovered evidence is applicable only in mitigation of damages a new trial will not be granted. "We are not prepared to go to the full length of these decisions; but, nevertheless, in such a case, we think the court ought to he extremely careful, and not grant a new trial, unless it is very clear that if the new testimony had been before the jury the verdict would be so manifestly excessive that the defendant would be entitled to a new trial on that account. The plaintiff testified at the trial that, before the accident, he had never been confined to the house in his life, and had never considered himself nervous; and his wife testified that before it he was perfectly well. The new testimony controverts these statements. It comes mainly from men who worked with the plaintiff in a machine-shop from 1880 to 1884. They testify that during that time he complained much of his back, said it was lame; that he could not do heavy work, especially lifting; that he had been a sailor in his youth, and suffered from shipwreck, and had been in a hospital; and they also testified that he suffered much from piles, and that he lost time from sickness. Some of this testimony is merely cumulative, a witness called by the defendant having testified at the trial that he heard the plaintiff complain of his back in 1884. This, of course, weakens it as a ground for new trial. And, furthermore, the plaintiff has introduced counter-affidavits. Affidavits covering the time from 1880 to 1884 have been given by the employers of the plaintiff, who were also employers of the petitioner's affiants. They testify that the plaintiff appeared to be a strong, healthy man; that he did hard and heavy work; that they never heard him complain; and that he lost little or no time from sickness. Other counter-affidavits were even stronger. They lead us to think that much of...