Texas & Pacific Railway Co. v. Smith

• Decision Date: 12 July 1909
• Citation: 121 S.W. 282,91 Ark. 362
• Parties: TEXAS & PACIFIC RAILWAY COMPANY v. SMITH
• Court: Arkansas Supreme Court

121 S.W. 282

91 Ark. 362

TEXAS & PACIFIC RAILWAY COMPANY v. SMITH

Supreme Court of Arkansas

July 12, 1909

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

Glass Estes & King, for appellant.

Where material evidence is discovered after the trial, which is essential to a complete defense of the action, and the failure to discover it sooner is not due to any negligence on the part of the defendant, this is a ground for setting aside the judgment and granting a new trial, after the term in which the judgment was rendered has been adjourned. Kirby's Dig. § 6220.

E. F Friedell, for appellee.

The court heard the testimony of witnesses on the motion for new trial, and the court's finding will not be disturbed. 53 Ark. 166; 60 Ark. 257. The trial court is necessarily vested with large discretion in the matter of motions for new trials. 39 Ark. 108; 76 Ark. 97; 85 Ark. 179.

OPINION

BATTLE, J.

Daniel W. Smith brought an action against the Texas & Pacific Railway Company, before a justice of the peace of Miller County, to recover eighty-five dollars for damages caused by an alleged negligent killing of two burros by defendant. After trial and judgment in a justice's court it was taken by appeal to the Miller Circuit Court, where a jury trial was had on the 29th of June, 1908, and judgment was rendered against the defendant in favor of the plaintiff for twenty-five dollars and costs. After the rendition of the judgment an order was made allowing the defendant until the fourth day of July following within which to file a motion for a new trial, but no motion was filed, and the judgment became final. The court at the June, 1908, term, adjourned on the fourth of July, 1908, and thereafter, on the 14th day of the same month, the following motion for a new trial, based upon newly discovered evidence, was filed by the defendant:

"Comes the defendant herein, in vacation, as provided by law, and files this, its motion for a new trial of this case, with the prayer that the verdict of the jury and the judgment of the court rendered herein be set aside, and the case be tried anew.

"In support of this motion the defendant respectfully shows that since the trial of this case and the adjournment of the June, 1908, term of this court, it has discovered new evidence bearing on the issues of this case, which evidence is material to the defense herein, and which, after reasonable diligence, it could not and did not discover and produce at the trial.

* * * *

The defendant shows that, since said trial and the adjournment of said court, it has discovered evidence to the effect that either the day before or the afternoon or evening when they were struck, the plaintiff led them upon the defendant's right of way and within the inclosure surrounding same; that he led them upon said right of way and within the enclosure surrounding same by pushing down the bottom wire of the fence, and lifting up the upper wire, permitting them to go upon the right of way between said wires; that at such time they were tied together with a rope, and were left within said inclosure, grazing, exposed to the danger of being struck by passing trains, with no chance to escape if upon trestle or curve.

"The defendant shows that said testimony is essentially material to its defense in that it shows that the plaintiff's own negligence and carelessness caused and contributed to such damage as he sustained, and that such negligence and carelessness, even if negligence were proved against the defendant, which was not, would preclude a recovery by the plaintiff in the case.

"The defendant shows that it could not, with reasonable diligence have discovered and produced this testimony at the trial of this case, and says that it made a special effort prior to this trial to get at all the facts and all the merits of the claim involved in this suit. That it sent its special agent to the place where the damage was alleged to have been done and undertook to ascertain, through said special agent, not only all the facts and circumstances connected with the injury, but also everything relating to the value of the animals; that said special agent spent some time in said vicinity, went to see every man who was reputed to have known anything of the claim, and used every diligence he could to ascertain all the facts about the matter. It says that said special agent never heard it intimated by any one, nor did any one else connected with this defendant hear it intimated by any one, prior to the trial of this cause, that plaintiff had in any manner been responsible for the animals being upon the defendant's right...