Kerner

This is an appeal from an order denying plaintiff’s motion for a new trial. The action was one for damages alleged to have been sustained by the plaintiff through an accident arising from the negligent operation of the defendant’s automobile. The defendant in his answer denied that the accident occurred through any negligence on the part of himself or the operator of his automobile, and alleged that the plaintiff’s injury occurred through her own negligence. The action was tried by the court sitting without a jury, and the findings and judgment of the court were in favor of the defendant upon both these issues. The plaintiff did not appeal from the judgment, but moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision of the court, and also upon the ground of newly discovered evidence, and she now appeals from the order of the court denying her said motion for a new trial.

The facts of the case which form the basis of the findings and judgment of the court were briefly these: On the evening of December 10, 1913, the defendant in his automobile driven by his son, a driver of several years’ experience, was proceeding westerly along the…