Howland

Action for damages resulting from personal injuries.

The action was against both defendants, the injuries having resulted from a collision of the cars of defendants at a point where their roads crossed. Verdict and judgment were in favor of plaintiff, against the defendant Oakland Consolidated Street Eailroad Company alone, and the latter appeals from the judgment and an order denying it a new trial.

1. The first point urged for a reversal is that the court below erred in not granting appellant a new trial upon the ground of newly discovered evidence. The evidence at the trial upon the question as to which one of the two defendants was guilty of the greater degree of negligence in bringing about the accident was conflicting, but that there was evidence tending directly to show negligence on the part of appellant there is no question. The newly discovered evidence, if it may be so regarded, bears only upon the question of the relative degree of negligence of the two defendants, and in no way tends to rebut or defeat plaintiff’s right to recover from one or both of the defendants. While it may not be purely cumulative, it is largely of the same general character, and to the same…