McGregor v. Great Northern Railway Company

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCHRISTIANSON, J.
Citation154 N.W. 261,31 N.D. 471
Decision Date16 September 1915

154 N.W. 261

31 N.D. 471


Supreme Court of North Dakota

September 16, 1915

Appeal from a judgment and an order denying a new trial of the District Court of Ward County; Leighton, J. Defendant appeals.


Dudley L. Nash and Murphy & Toner, for appellant.

The evidence shows that plaintiff was guilty of contributory negligence, and the court erred in not granting defendant's motion for a directed verdict. The plaintiff voluntarily, and without cause or provocation, placed himself in an unusual and dangerous place. He knew this. It was obvious. He had ample opportunity to go into the caboose after the first smash-up claimed by him, and ride therein in the usual manner, and as the men did. He elected to remain in the stock car and take his chances. 2 White, Personal Injuries, § 796; Ashbrook v. Frederick Ave. R. Co. 18 Mo.App. 290; Carroll v. Inter-State Rapid Transit Co. 107 Mo. 653, 17 S.W. 889, 4 Am. Neg. Cas. 686; Norfolk & W. R. Co. v. Ferguson, 79 Va. 241; Little Rock & Ft. S. R. Co. v. Miles, 40 Ark. 298, 48 Am. Rep. 10; Files v. Boston & A. R. Co. 149 Mass. 204, 14 Am. St. Rep. 411, 21 N.E. 311, 3 Am. Neg. Cas. 856; Jackson v. Crilly, 16 Colo. 103, 26 P. 331; Higgins v. Cherokee R. Co. 73 Ga. 149; Foley v. Boston & M. R. Co. 193 Mass. 332, 7 L.R.A. (N.S.) 1076, 79 N.E. 765; Cottrell v. Pawtucket Street R. Co. 27 R. I. 565, 65 A. 269; Tuley v. Chicago, B. & Q. R. Co. 41 Mo.App. 432; Rucker v. Texas & P. R. Co. 61 Tex. 499; Brown v. Scarboro, 97 Ala. 316, 12 So. 289; International & G. N. R. Co. v. Copeland, 60 Tex. 325, 8 Am. Neg. Cas. 504; Wait v. Omaha, K. C. & E. R. Co. 165 Mo. 612, 65 S.W. 1028; Hedrick v. Missouri P. R. Co. 195 Mo. 104, 93 S.W. 268, 6 Ann. Cas. 793; Pennsylvania R. Co. v. Langdon, 92 Pa. 21, 37 Am. Rep. 651, 10 Am. Neg. Cas. 215; Houston & T. C. R. Co. v. Clemmons, 55 Tex. 88, 40 Am. Rep. 799; Peoria & R. I. R. Co. v. Lane, 83 Ill. 448, 9 Am. Neg. Cas. 222; Florida Southern R. Co. v. Hirst, 30 Fla. 1, 16 L.R.A. 631, 32 Am. St. Rep. 17, 11 So. 506; Bromley v. New York, N. H. & H. R. Co. 193 Mass. 453, 79 N.E. 775.

The general rule as to diligence seems to be that the application of a party for a new trial, on the ground of newly discovered evidence, must show what diligence he exercised in preparing for the first trial, how the new evidence was discovered, and why it was not discovered before the first trial, and such facts as to make it clear that the failure to produce the new evidence was not the fault or want of diligence on the part of the applicant. 1 Spelling, New Trials, p. 363, § 218.

The defendant's affidavits used upon the motion do not contain mere conclusions, but are statements of ultimate facts, upon the subject of diligence. This is all the rule requires. Boggess v. Read, 83 Iowa 548, 50 N.W. 43.

Upon the question of newly discovered evidence, the rule seems to be that if the proposed newly discovered evidence brings to light some new fact bearing upon the main question, and that it would be likely to change the result, a new trial should be granted. 1 Spelling, New Trials, p. 367, and cases cited; Beery v. Chicago & N.W. R. Co. 73 Wis. 197, 40 N.W. 687.

Or, if such evidence be material on that issue alone on which the verdict is based, it is sufficiently material to justify the granting of a new trial. 1 Spelling, New Trials, p. 367, and cases cited; McMullen v. Winfield Bldg. & L. Asso. 4 Kan.App. 459, 46 P. 410.

And to deny a new trial under such conditions, the court must be of the opinion that the admission of the new evidence would not cause a different result. 1 Spelling, New Trials, p. 371.

"In order to warrant a new trial for material newly discovered evidence, it is not necessary that it bear exclusively upon the question of the plaintiff's right to a judgment for some amount. It will be sufficient if it affect the amount of recovery. 1 Spelling, New Trial, § 223; Jensen v. Hamburg American Packet Co. 23 A.D. 163, 48 N.Y.S. 630.

Courts cannot refuse a new trial on the ground merely that the proposed new evidence is cumulative, or impeaching, or both, in character. All relevant, competent, and material new discovered evidence must of necessity be more or less cumulative or impeaching; but if it be of sufficient probative force and materiality to probably change the result upon retrial, it is sufficient, or at least a new trial should not be denied because of the fact that it seems to be cumulative or impeaching. 1 Spelling, New Trials, § 225, and cases cited; Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577; Oberlander v. Fixen, 129 Cal. 690, 62 P. 254.

Where evidence of such a nature appears of such strength and probative force and value as to be decisive of the result, the motion should be granted. Pengilly v. J. I. Case Threshing Mach. Co. 11 N.D. 249, 91 N.W. 63, 12 Am. Neg. Rep. 619; Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762; 1 Spelling, New Trials, § 227, and cases cited; Sulman v. Dolan, 24 S.D. 32, 123 N.W. 72; State v. Laper, 26 S.D. 151, 128 N.W. 476.

The newly discovered evidence here offered by the defendant is material, and is of such probative force and value that the court must say, with reason, that in all probability it would change the result upon a further trial. Delmas v. Martin, 39 Cal. 555; Croner v. Farmers' F. Ins. Co. 18 A.D. 263, 46 N.Y.S. 108; Louisville & N. R. Co. v. Bickel, 97 Ky. 222, 30 S.W. 600; Texas & P. R. Co. v. Barron, 78 Tex. 421, 14 S.W. 698; Van Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698.

It was the duty of the trial court to explain the meaning and application of the technical term "proximate cause" to the jury, and its failure to do so was prejudicial error. 2 Thomp. Trials, § 2327; Chappell v. Allen, 38 Mo. 213; Clarke v. Kitchen, 52 Mo. 316.

E. R. Sinkler, for respondent.

The affidavits produced on defendant's motion for a new trial are purely impeaching, and the rule is that such evidence does not furnish good ground for a new trial. Libby v. Barry, 15 N.D. 286, 107 N.W. 972; Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762; Stoakes v. Monroe, 36 Cal. 388, 2 Mor. Min. Rep. 246; 14 Enc. Pl. & Pr. p. 791; Tuberville v. State, Miss. , 38 So. 333; State v. McKenzie, 177 Mo. 699, 76 S.W. 1015; People v. Sullivan, 40 Misc. 308, 81 N.Y.S. 989.

"Where defendant claimed an alibi, and introduced several witnesses who testified to having seen him at a certain place, newly discovered evidence that defendant was seen at such place talking to a witness who had denied seeing him there is not ground for new trial." Whitfield v. State, 40 Tex. Crim. Rep. 14, 48 S.W. 173.

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court, and its decision is conclusive upon the question unless it clearly appears that the discretion vested in the trial court has been abused. Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762; Barrett v. Third Ave. R. Co. 45 N.Y. 628; Hayne, New Tr. & App. 87.

Application for new trial upon such ground is always looked upon with distrust and disfavor. Braithwaite v. Aiken, 2 N.D. 62, 49 N.W. 419; Nelson v. Carlson, 54 Minn. 90, 55 N.W. 821; Chalmers v. Sheehy, 132 Cal. 459, 84 Am. St. Rep. 62, 64 P. 710.

Where newly discovered evidence is merely impeaching and cumulative in its character, it is not ground for a new trial. Reid v. State, 103 Ga. 572, 30 S.E. 248; Whitehead v. Breckenridge, 5 Ind. Terr. 133, 82 S.W. 698; Corley v. New York & H. R. Co. 12 A.D. 409, 42 N.Y.S. 941; Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 P. 948, 20 Mor. Min. Rep. 591; Knuffke v. Knuffke, 8 Kan.App. 857, 56 P. 326; Baxter v. Hamilton, 20 Mont. 327, 51 P. 265; Libby v. Barry, 15 N.D. 286, 107 N.W. 972; Huster v. Winn, 8 Okla. 569, 58 P. 736; Curran v. A. H. Strange Co. 98 Wis. 598, 74 N.W. 377; Harvey v. Ivory, 35 Wash. 397, 77 P. 725; 14 Enc. Pl. & Pr. 791.

A new trial will not be granted for newly discovered evidence which is merely cumulative. Wood v. Moulton, 146 Cal. 317, 80 P. 92; Patterson v. San Francisco & S. M. Electric R. Co. 147 Cal. 178, 81 P. 531; Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953.

And especially where such evidence, by the exercise of reasonable diligence, could have been produced at the trial. Knollin v. Jones, 7 Idaho, 466, 63 P. 638; Guerold v. Holtz, 103 Mich. 118, 61 N.W. 278; Ernster v. Christianson, 24 S.D. 103, 123 N.W. 711; Hahn v. Dickinson, 19 S.D. 373, 103 N.W. 642; State v. Reilly, 25 N.D. 339, 141 N.W. 720.

Affidavits upon such a motion must contain a statement of the facts showing the diligence used. A mere general statement that the party used due diligence to find and ascertain the facts before the trial is the statement of an opinion or conclusion. The facts themselves should be brought before the court by the affidavits, and then it is for the court to conclude as to their nature, force, and value, upon the question of diligence. St. Louis Southwestern R. Co. v. Stanfield, 63 Ark. 643, 37 L.R.A. 659, 40 S.W. 126, 2 Am. Neg. Rep. 298; B. S. Flersheim Mercantile Co. v. Gillespie, 14 Okla. 143, 77 P. 183; Bradley v. Norris, 67 Minn. 48, 69 N.W. 624; Goracke v. Hintz, 13 Neb. 390, 14 N.W. 379; Heady v. Fishburn, 3 Neb. 263.

It is not sufficient to allege in affidavit to support a motion for new trial upon this ground, that the party could not with reasonable diligence procure such testimony before the trial. The affidavit must state and specify what particular efforts the party made before the trial, to produce the testimony. Tomer v. Densmore, 8 Neb. 384, 1 N.W. 315; Graham v. Payne, 122 Ind. 403, 24 N.E. 216; Keisling v. Readle, 1 Ind.App. 240, 27 N.E. 583; Hamm v. Romine, 98 Ind. 77.

The burden of proof was upon defendant to show contributory negligence on the part of plaintiff, by a fair preponderance of all of the evidence--not by or from the evidence of the defendant, but from...

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