Layman v. Minneapolis Street Ry. Co., s. 10,289 - (122).

• Decision Date: 16 December 1896
• Docket Number: Nos. 10,289 - (122).,s. 10,289 - (122).
• Citation: 66 Minn. 452
• Parties: MYRTA LAYMAN, Administratrix, v. MINNEAPOLIS STREET-RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 452

66 Minn. 452

MYRTA LAYMAN, Administratrix, v. MINNEAPOLIS STREET-RAILWAY COMPANY.¹

Nos. 10,289 - (122).

Supreme Court of Minnesota.

December 16, 1896.

Appeal by defendant from an order of the district court for Hennepin county, Jamison, J., granting a motion for a new trial. Affirmed.

Koon, Whelan & Bennett, for appellant.

John P. Rea and Frank Healy, for respondent.

START, C. J.²

The plaintiff's intestate died as a result of a collision between a wood cart, which he was driving, and one of the defendant's street cars. Both were going in the same direction. The main issues litigated on the trial of the action, which was for the recovery of damages on account of his death, were the negligence of the defendant and the contributory negligence of the deceased. There was a verdict for the defendant. The trial court granted the plaintiff's motion for a new trial solely on the ground of newly-discovered evidence, and defendant appealed from the order.

The verdict was general only, hence the record does not disclose the ground upon which the jury based the verdict. The trial court stated, in its memorandum, that evidently the jury found that the deceased was guilty of contributory negligence, and that such finding was the basis of the verdict. It cannot be so assumed, although the evidence renders it more probable that such was the case than that the jury found that the defendant was not guilty of negligence in the premises. These suggestions are made with reference to the character of the newly-discovered evidence, which tends to show that the deceased, as he started to turn his team upon the car tracks for the purpose of avoiding a pile of lumber which had been placed near the curb of the street along which he was driving his cart, looked back in the direction he had been coming, and that there was no car then in sight. It is undisputed that his view, in the direction from which the car came, was unobstructed for at least three blocks. The defendant claims, that this evidence is simply cumulative, that it is false, and would not change the verdict on another trial.

The granting or denying of a motion for a new trial on the ground of newly-discovered evidence is a matter resting largely in the discretion of the trial court, and its order will not be reversed on appeal unless it is made to appear that the order violated some legal right of appellant, or was an abuse of discretion; the presumption being that the discretion was properly...