Texas & N. O. R. Co. v. Scarborough

• Decision Date: 18 March 1908
• Citation: 108 S.W. 804
• Parties: TEXAS & N. O. R. CO. v. SCARBOROUGH et al.
• Court: Texas Supreme Court

108 S.W. 804

TEXAS & N. O. R. CO. v. SCARBOROUGH et al.

Supreme Court of Texas.

March 18, 1908.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Mrs. R. A. Scarborough and others against the Texas & New Orleans Railroad Company. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiffs (see 104 S. W. 408), and defendant brings error. Affirmed.

Baker, Botts, Parker & Garwood and J. S. McEachin, for plaintiff in error. Smith, Crawford & Sonfield and Lovejoy & Parker, for defendants in error.

GAINES, C. J.

When we granted the writ of error in this case, we were of the opinion that all the assignments of error were correctly overruled by the Court of Civil Appeals, save those which complained of the court's action in overruling the motion for a new trial. We are still of that opinion, and therefore deem it unnecessary to discuss any of the assignments except those last mentioned.

It is claimed that a new trial should have been granted on the ground of newly discovered evidence as set up by plaintiff in error's amended motion for a new trial. The verdict was returned and the judgment entered on the 16th day of May, 1906, and the amended motion for a new trial was filed on the 26th day of the same month, which was the last day of the term as fixed by law. Laws 1903, p. 8, c. 7, § 2. Now, in order to obtain a new trial on the ground of newly discovered evidence, it must appear by the motion that diligence to procure the testimony has been used, and that it could not be obtained in time for the trial, that the evidence is not merely cumulative, and that upon a new trial it would probably change the result. It seems to us that the showing as to diligence to discover the testimony before the trial was sufficient. The affidavits of Jasse show that he would testify that he saw the accident that resulted in the death of Scarborough, and that there was no one standing in a place of danger when the accident occurred. This is so variant to the testimony of a cloud of witnesses who gave testimony as to suggest that he was testifying as to a different transaction. The witnesses upon the trial who gave evidence as to the man being in danger testified to the facts in such detail as to show that they spoke the truth or willfully testified falsely. They could not have been mistaken as to the main facts. The one fact about which the proposed witness is "very positive" is that the deceased was not struck by the swinging door of the car. It was testified to by the defendant's own witness Abbott "that the car caught and rolled him some; but that the door stuck out about that much further than the car, about an inch and a half or two inches, and that the door is what mashed him." The proposed testimony is to the effect that he did not hear Scarborough halloo to any one, and did not see any person in danger near the track. Of course, if he was in a position to see and hear, and he did not see or hear,...