Opinion
September 25, 1934.
November 26, 1934.
Appeals — Review — Order refusing new trial — After-discovered evidence — Evidence of cumulative nature — Discretion of trial court — Abuse.
Where after-discovered evidence is of a cumulative nature, and it is problematic whether it would have made any change in the result, the question of a new trial is for the court below, and, in the absence of abuse, its discretion will not be overruled. [288]
Argued September 25, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeals, Nos. 222 and 223, March T., 1934, by plaintiffs, from judgment of C. P. Westmoreland Co., Aug. T., 1933, No. 393, in case of Ida Maienfisch, a minor by her father and next friend, Alphonsus U. Maienfisch, and Alphonsus U. Maienfisch in his own right, v. W. Curtis Bleakney. Judgment affirmed.
Trespass for personal injuries. Before WHITTEN, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiffs appealed.
Error assigned, inter alia, was refusal of new trial, quoting record.
Edward O. Spotts, Jr., with him Louis Claster, for appellants.
Charles E. Vogel, with him Philip K. Shaner, for appellees.
These appeals are from the refusal of the court below to grant a new trial after verdict for defendant in a suit to recover damages for personal injuries received by the minor plaintiff when struck by an automobile driven by defendant's son, acting under the control and direction of his father, who, although not the owner of the car, was present therein at the time of the accident. Appellants seek a new trial for the purpose of introducing evidence which they term after-discovered but which the record discloses was known to plaintiffs' counsel at the time of the trial, and could have been produced by the exercise of proper diligence. A more serious objection is the fact that the testimony, if given, would simply be corroborative of evidence introduced at the trial. "Where after-discovered evidence is of a cumulative nature, and it is problematic whether it would have made any change in the result, the question of a new trial is for the court below, and, in the absence of abuse, its discretion will not be overruled." Hinman v. Hinman, 283 Pa. 29, 32. See also Hunter v. Bremer, 256 Pa. 257.
Judgment affirmed.