Krueger v. City of Merrill

Lyoet, J. 1. The principal error assigned is the refusal of the court to grant a new trial. The newly discovered evidence amounts to little more than additional testimony that the sidewalk at the place of injury was in good condition and unbroken when the accident happened. The circumstance of the breaking and repairing of the walk by Stroud is of little importance at best, and is of no importance if it occurred after the plaintiff was injured. Several witnesses having testified on the trial just as positively as Cotter and Stroud propose to testify, that there was no hole or other defect in the sidewalk, and those witnesses having equally as good means of knowledge on that subject as Cotter and Stroud have, the newly discovered evidence is [31] purely cumulative. Hence it was no abuse of discretion to deny the motion for a new trial. The language of this court on a similar question in the late case of Hinton v. Cream City R. Co. 65 Wis. 323, is peculiarly applicable here. The litigated question there was whether the car bell was rung at a specified time and place. The trial court refused to open the case, after it had been argued to the jury, to admit the newly discovered testimony of one "Webb tending to show that the bell was not so rung. This court said: “Several passengers who were in the car at the time testified that they heard no bell ring before the accident, and some of them assert more or less positively that none was rung. These witnesses had as good, perhaps better, opportunities than "Webb to know whether the bell was or was not rung. The attention of some of them was directed to the matter by circumstances then present as strongly as was that of Webb, and they appear to be equally credible. These facts seem to render the proposed testimony of Webb entirely cumulative. It is not the case of different witnesses testifying to different specific facts, all tending to prove the same general proposition, but of different witnesses testifying to the same fact. Herein lies the distinction between this case and the cases of Wilson v. Plank, 41 Wis. 94, and Smith v. Smith, 51 Wis. 665, cited for defendant. We think it was within the sound discretion of the trial court to open the case and admit the testimony or to refuse to do so.” We think that case is directly in point, and rules the present case. 2. An exception to the ruling of the court admitting certain testimony, against the objection of the defendant, will be briefly noticed. One Middlestead, a witness called by the defendant, testified that he was on the opposite side of the street when the plaintiff was injured; that he went over there and heard the men talking. He said: “ They were talking in German when I got there.” He then detailed a [32] conversation, between the plaintiff and one of the party with him relative to the cause of the injury. The plaintiff, in rebuttal, denied having any such conversation, and was allowed to testify further, against the objection of the defendant, that he and the person it was alleged he talked with always talked in English, and that it was the rule of a military company to which both belonged, that all orders be given in English. Middlestead did not testify that the conversation detailed by him was in the German language. Hence the testimony objected to impeached no one, and was without the slightest significance. It ought to have been rejected as utterly immaterial. To hold that it might have affected the verdict would be an insult to the proverbial intelligence of the jury. It was a harmless error, which furnishes no justifiable ground for reversing the judgment. Ho other errors are assigned. By the Court. — -The judgment of the circuit court is affirmed.