Barnum & Bailey Shows Inc. v. Himmelweit

Wade, J. 1. The charge as a whole sufficiently presented the points at issue in a general way; and since there was no timely request in writing for the more specific instructions desired in connection with the 4th, 5th and 6th grounds of the motion for a new trial, the plaintiff in error can not now be heard to complain of such omissions. 2. The ownership of the wagon which inflicted the injury sued for, as well as the agency or connection of the driver thereof with the defendant in the court below, might be inferred by the jury from facts and circumstances in proof, as well as from direct testimony, and the court did not err in so charging. There is no substantial merit in the 7th ground of the motion for a new trial. 3. The 8th and 9th grounds of the motion for a new trial relate to alleged newly discovered evidence of certain witnesses. “If the newly discovered evidence is. that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and-credibility must be adduced.”' Civil Code, § 6086. No such affidavits accompany the affidavits in support of the ground of the motion for a new trial based upon alleged newly discovered testimony; and therefore, waiving the question as to whether the alleged evidence is cumulative and impeaching in character or not, and as to the diligence of the plaintiff in error in respect thereto, this court may not consider the same. 4. The evidence sufficiently supported the verdict, no material error was committed by the court in the trial, and the court did not err in overruling the motion for a new trial. Judgment affirmed.