McGinley v. Maine Cent. R. Co.
| Decision Date | 02 December 1919 |
| Citation | 109 A. 715 |
| Parties | McGINLEY v. MAINE CENT. R. CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Coos County; Sawyer, Judge.
Action by Theresa McGinley against the Maine Central Railroad Company for personal injuries. A verdict for plaintiff was sustained (79 N. H. 159, 106 Atl. 641), and immediately thereafter defendants filed petition for new trial for newly discovered evidence. Petition granted, and plaintiff excepted. Petition dismissed nisi.
Petition, for a new trial because of newly discovered evidence. The suit was brought to recover for injury received upon a highway crossing by being run upon by the defendants' engine. A verdict for the plaintiff was sustained at the February session, 1919, Of the Supreme Court, 79 N. H. 159, 106 Atl. 641. Immediately thereafter the defendants filed this petition. The evidence was from a witness of the injury and tended to show absence of care in the plaintiff as its cause. The evidence was furnished in the form of an ex parte affidavit. Subsequently the plaintiff secured similar affidavits from the same person materially modifying his former statements. The court found the first affidavit true and that, while the evidence therein was not absolutely certain to be accepted by a jury as the truth or as conclusive evidence of contributory negligence, yet a jury might accept it as a very important factor and be convinced by it that Mrs. McGinley, the plaintiff, was not in the exercise of due care. Upon this statement the court found that justice demanded that the petition for a new trial be granted. To the order granting the petition the plaintiff excepted.
Drew, Shurtleff, Morris & Oakes, of Lancaster (E. C. Oakes, of Lancaster, orally), for petition.
Bernard Jacobs, of Lancaster, opposed.
The two propositions which under the statute (P. S. c. 230, § 1) must be established to authorize the granting of a new trial, that, through accident, mistake or misfortune, justice has not been done and a further hearing would be equitable, are facts the determination of which upon competent evidence is committed to the superior court. To authorize such findings in a petition for further trial upon the ground of newly discovered evidence it must appear: (1) That the party presenting it was not in fault for not discovering and presenting the evidence at the former trial; (2) the evidence must be material to the issue joined, and not cumulative; it must go to the merits of the case and not to impeach or discredit a witness; (3) it must be of such a character that it is at least probable that a different result will be reached upon another trial. State v. Carr, 21 N. H. 166, 170, 53 Am. Dec. 179; Crafts v. Insurance Co., 36 N. H. 44, 50, 51; Dennett v. Dennett, 44 N. H. 531, 535, 84 Am. Dec. 97; Ela v. Ela, 72 N. H. 216, 219, 55 Atl. 358; Sanborn v. Railroad, 77 N. H. 307, 91 Atl. 805. See St. Pierre v. Foster, 75 N. H. 10, 11, 70 Atl. 289.
As a general verdict or finding implies the finding of all evidentiary facts necessary to sustain it of which there was evidence, under a general finding, in the words of the statute, that justice has not been done and a further hearing would be equitable, the only inquiry is whether there was any evidence tending to prove the evidentiary facts essential to the finding; but where there are special findings there is the added inquiry whether any of the special findings are inconsistent with the general finding. Concord Coal Co. v. Ferrin, 71 N. H. 33, 36, 51 Atl. 283, 93 Am. St. Rep. 496; Allen v. Association, 72 N. H. 525, 527, 57 Atl. 922; Wheeler v. Metropolitan, etc., Exchange, 72 N. H. 315, 318, 319, 56 Atl. 754; Levasseur v. Berlin, 75 N. H. 146, 71 Atl. 628; State v. Gross, 76 N. H. 304, 305, 82 Atl. 533; McConnell v. McConnell, 75 N. H. 385, 387, 74 Atl. 875; Jaques v. Chandler, 73 N. H. 376, 382, 62 Atl. 713. There was evidence that the defendants were not in fault, and that the evidence was material, and not cumulative. But "in order to obtain such relief he [the petitioner] must show not only that he is free from fault, but also that a different result will probably be reached if he is given a new trial." Sanborn v. Railroad, 77 N. H. 307, 308, 91 Atl. 865, 866.
Obviously it would not be equitable to impose upon the public or the parties the expense of another trial unless it is at least probable that something will be accomplished. "In order to be satisfied that injustice is likely to be done...
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...discovered witnesses to the collision. Their testimony was merely cumulative, and would not warrant a new trial. McGinley v. Maine Cent. Railroad Co., 79 N.H. 320, 109 A. 715. See State v. Bassett, 93 N.H. 62, 35 A.2d 388; Watkins v. Boston & M. Railroad, 82 N.H. 468, 119 A. 206. The conclu......
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...85, 86, 122 A. 899. No finding inconsistent with the verdict has been pointed out, and none has been discovered. McGinley v. Maine Cent. R. Co., 79 N. H. 320, 321, 109 A. 715. It therefore follows that a finding that the plaintiff had no adequate remedy at law is to be implied from the decr......
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N. E. Redlon Co. v. Franklin Square Corp., 3269.
...the re-hearing of the merits of the issue of consent, if the Superior Court had jurisdiction to make the findings. McGinley v. Maine Cent. R. Company, 79 N.H. 320, 109 A. 715. By the weight of common law authority and upon the better reasoning the Superior Court's discretionary powers are c......