Tabler v. Connor

• Citation: 60 Tenn. 195
• Parties: J. H. TABLER v. MARY CONNOR, Adm'x.
• Decision Date: 31 December 1873
• Court: Tennessee Supreme Court

60 Tenn. 195

J. H. TABLER

v.MARY CONNOR, Adm'x.

Supreme Court of Tennessee.

December Term, 1873.

FROM DAVIDSON.

Appeal from the Circuit Court. NATHANIEL BAXTER, Judge.

GUILD & SMITH for Tabler.

MCCLANAHAN & MCALISTER for Mary Connor.

NICHOLSON, C. J., delivered the opinion of the Court.

This suit was commenced by Michael Connor against J. H. Tabler, to recover damages in consequence of the negligence of Tabler's employees in blasting rock, whereby Connor's leg was broken. The action was by summons and ancillary attachment; property valued at $1,000 was attached and replevied, under bond, in pursuance of the Statute. Defendant plead the general issue, and also specially, that his employees were skillful and careful workmen, and guilty of no negligence, on which plea there were issues.

The jury, under a charge admitted to be correct, found a verdict for $800, on which judgment was rendered against Tabler and his surety in his replevy bond for the amount of the verdict. Defendant moved for a new trial, and relied on the affidavit of Dr. Baily, who attended on Connor during his confinement with his broken leg, and who states that in his conversation with Connor he attached no blame to Tabler's employees, but that he thought he was in no danger, and paid no attention to the signal of warning given before touching off the blast. He does not say expressly that Connor admitted he heard the signal, but it might be inferred from his statement that Connor so admitted. It is shown that this evidence was unknown to Tabler until after the trial. Dr. Baily says he did not communicate the conversation with Connor until after the trial, not knowing until then that Connor had sued for damages.

The motion for a new trial was overruled, and the main question now is, whether this was error?

There are well settled rules for granting new trials for newly discovered evidence, by which the present case must be governed. 1. If a party omits to procure evidence, which with ordinary diligence he might have procured, in relation to those points, on the first trial, his motion for a new trial for the purpose of introducing such testimony, shall be denied. 2. If the newly discovered evidence consists merely of additional facts and circumstances, going to establish the same points which were principally controverted before, or of additional witnesses to the same facts and circumstances, such evidence is cumulative, and a new trial shall not be granted. In cases to...