Taylor

Mr. Justice Terry concurred.

The grounds relied on in the Court below for a new trial, were, first, surprise; second, newly discovered evidence; third, misconduct of the jury; and, fourth, excessive damages.

On the trial, one Rossiter was called as a witness for the plaintiff. On his cross-examination, he was asked if he had not, on a former occa^ sion, stated to one Benton that the accident was not caused by the fault of the driver, and if the plaintiff had not had his leg on the outside of the coach at the time it was upset, he would not have been injured; to which he answered, he had not.

The appellants allege they were taken by surprise by the answer of the witness, having been led to believe that his testimony would be di *230 rectly the reverse. If Rossiter had been called by the defendants, and it had appeared on the trial that he had misled them by statements of what his evidence would be, and the defendants relying on such representations, had not prepared themselves with other testimony, it might have been a proper ease for the interference of the Court. But under the circumstances in which the witness presented himself, it was the duty of the appellants to be…