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Fitzpatrick v. Goerke Kirch Co.

Decided: May 21, 1937.

MARY FITZPATRICK, PLAINTIFF,
v.
GOERKE KIRCH COMPANY, DEFENDANT



On defendant's rule to show cause for a new trial.

For the plaintiff, Clarick & Clarick (Frank Cohn, of counsel; Samuel J. Marantz, on the brief).

For the defendant, Jaseph C. Paul (John F. Ryan, of counsel).

Before Brogan, Chief Justice, and Justices Trenchard and Parker.

Parker

The opinion of the court was delivered by

PARKER, J. The case was tried before Judge Jayne, at the Union Circuit, and there was a verdict of $8,000 for the plaintiff. The trial judge allowed and heard a rule to show cause based essentially on weight of evidence, and discharged the rule. Appeal was taken and was pending in the Court of Errors and Appeals, when further application was made to the trial judge for a new trial on the ground of newly discovered evidence, and was denied by him. The appeal was dismissed on defendant's motion and Mr. Justice Case, of this court, on application to him, allowed a rule to show cause for a new trial on the ground of newly discovered evidence, which rule is now before us for determination.

For the plaintiff, some question is raised touching alleged technical irregularities in the procedure outlined above, but we pass these without comment, preferring to dispose of the rule on the merits as they appear to us.

The newly discovered evidence consists solely of testimony to alleged statements of the principal witness for plaintiff as to the circumstances of the accident on which the suit is based, and which statements would, as claimed, so seriously impeach her testimony in the cause as to persuade a jury to a contrary verdict.

The accident occurred as plaintiff was walking on the sidewalk in front of defendant's store in Elizabeth. The claim was that there was a depression in the sidewalk, due to faulty construction or maintenance of a section containing small circular light vents intended to admit light through the sidewalk to a vault or cellar below; that this section had sunk slightly, leaving a "jog" in the sidewalk level, which had caused plaintiff to stumble and fall, breaking her hip. These circumstances were testified to by her daughter, Loretta, who said she was with plaintiff at the time, and this last circumstance is not denied. Photographs introduced at the trial show the defect; and the existence of that defect is not denied.

We come now to the newly discovered evidence, and are willing to assume for present purposes that due diligence would not have brought it to light in time for the trial. It is substantially this: that Mr. Caughman, an attorney of this court, was consulted by Loretta about her mother's case with a view of employing him to prosecute it, and in the course of the interview told him "she did not know what caused her mother to fall; that there was nothing on the sidewalk that she noticed that could have caused her to fall, and that neither her mother nor herself knew what caused the fall." (We quote the language of defendant's brief, which in this regard correctly gives the substance of Caughman's testimony).

This, it is claimed, is of such importance that if believed it would lead to a verdict for defendant; though it will be observed that it is not direct testimony about the accident, but only an ...


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