Serpiglio

Action for the recovery of damages alleged to have been sustained by plaintiff on account of the negligence of defendants.

The appeal is from a judgment in favor of defendants and an order of court denying plaintiff’s motion for a new trial. The sole ground upon which the motion for a new trial was made was newly discovered evidence, which plaintiff could not with reasonable diligence have discovered and produced at the trial.

The record discloses that at the hearing of the motion one affidavit was presented in support thereof, but the evidence upon which the court made its findings is not brought up for examination. The action of the trial court in granting or denying a motion for a new trial is so largely a matter in the court’s discretion that its rulings should not be disturbed, save and except in those cases where it is made to affirmatively appear that there has been an abuse of such discretion. In the absence of the evidence introduced at the trial, we cannot say that the court erred in denying the motion; indeed, the material facts averred in the affidavit are not necessarily inconsistent with the findings of the court.

The action was based upon the theory that…