
    Essreg v. Bronstein, Appellant.
    
      Practice, Superior Court — After-discovered evidence — Refusal of new trial — Discretion of court.
    
    Whether or not a new trial shall he granted, to let in after-discovered evidence, is a matter for the trial court, and the refusal of a new trial in such case will not be reversed, in the absence of proof of clear abuse of discretion.
    
      Trespass — Assault and battery — JEvidence—New trial.
    
    In an action of trespass for assault and battery it is not error to refuse the motion for new trial, on the ground that an affidavit filed showed that the plaintiff’s witnesses testified that they gaw the assault, from a point from where it was physically impossible to view it, when the evidence of the witnesses, both in chief and on cross-examination, was not necessarily inconsistent with the allegations of the affidavit.
    Argued October 21, 1920.
    Appeal, No. 245, Oct. T., 1920, by defendant, from judgment of Municipal Court of Philadelphia, May T., 1919, No. 406, on verdict for plaintiff in the case of Jacob Essreg, a minor, by his father and next friend, Abraham Essreg, and Abraham Essreg in his own right, v. Jacob Bronstein.
    Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.
    Affirmed.
    Trespass to recover damages for assault and battery. Before Knowles, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff, Jacob Essreg, for $200 and for plaintiff, Abraham Essreg, for $50. Subsequently a re-mittitur was filed by the plaintiff, Abraham Essreg, reducing the verdict in his favor to $25 and judgment was entered thereon. Defendant appealed.
    
      Error assigned was refusal to grant a new trial because of after-discovered evidence, as recited in the opinion of the Superior Court.
    
      George Douglas Hay, and with him B. Gordon Brom-ley, for appellant.
    
      J. Garroll Fow, for appellees.
    March 5, 1921:
   Opinion by

Porter, J.,

This is an action of trespass, for assault upon the minor plaintiff, in which the plaintiffs recovered judgments in the court below and the defendant appeals. The only assignment of error is to the refusal of the court below to grant a new trial, the motion for which was upon the ground of after-discovered evidence.

Two ladies called as witnesses by the plaintiffs had testified at the trial that while sitting at a window of No. 219 Montrose street, they had. seen the defendant slap and hick the minor plaintiff and that the assault occurred on Bodine street, near Montrose street. They further testified they ran over to where the little boy was lying on the pavement and one of them said to the defendant, “What are you doing?” whereupon the defendant told her it was none of her business; that one of the ladies picked up the little boy, who was bleeding from his mouth and nose, and carried him home and gave him to his mother. The defendant did not take depositions in support of his motion for a new trial upon the alleged ground of after-discovered testimony, but contented himself with filing the affidavit of one Abe Cohen, the material allegation of which was as follows, viz: “I am familiar with the locality of Montrose and Bodine Sts., and from careful examination I have made, I state that it is physically impossible for any one in the windows of No. 219 Montrose St., to see a person coming out into Bodine St. from the alleyway in the rear of No. 228 Montrose St. and commit an assault down on Bodine St. which runs south from the point where Bodine St. intersects with the south side of Mon-trose St., as No. 219 Montrose St. does not face Bodine St., but is about fifty feet east thereof, from which point such a view would be obscured by brick houses.” The house No. 219 is upon the north side of Montrose street; if it be conceded that it stands fifty feet east of Bodine street, then it seems clear that from the windows of that house there would be an unobstructed view of the west side of Bodine street for at least a short distance south of Montrose street. The argument of appellant is that, as the affidavit of Cohen states that it is physically impossible for any one in the windows of 219 Montrose street to see a person coming out into Bodine street from tbe alley in tbe rear of 228 Montrose street, this is a flat contradiction of tbe testimony of tbe two witnesses in question. Tbe argument assumes that tbe two ladies bad testified that they saw tbe defendant coming into Bodine street from tbe alley in tbe rear of bis residence, but tbe assumption is not supported by any fair reading of tbeir testimony. One of tbe witnesses, Mrs. Satkoif, bad testified that sbe was sitting at tbe window of No. 219 Montrose street and saw tbe defendant strike and kick tbe boy, but sbe did not attempt to say, nor was sbe asked, from wbat direction tbe defendant approached tbe scene of tbe assault, nor did sbe make any mention of tbe alley, entering Bodine street from tbe rear of tbe bouses fronting on Montrose street, west of Bodine street. Tbe other witness, Mrs. Robinson, did say in her examination in chief: “I seen Mr. Bronstein come from tbe back to Bodine St., and run over to tbe oldest boy, and grab tbe oldest boy by tbe ear, and tbe oldest boy pulled away from him, and be caught bold of tbe little boy and be smacked him in tbe face, and tbe little boy fell, and I ran over and I said wbat are you doing?” etc. It was, however, made clear by tbe cross-examination that her statement that tbe defendant came “from tbe back to Bodine St.” was founded upon inference. Sbe was asked tbe direct question; “Q. Did you see him come out from tbe back? A. I didn’t see him come out of tbe back, but that is tbe only way be can come out. Q. Then you didn’t really see where be came from? A. That is about tbe only way be can come out, through Bodine St., through tbe alley.” Here was a direct statement in her testimony that sbe did not see him come out from tbe back through tbe alley, into Bodine street. Tbe testimony of this witness cannot be fairly interpreted as meaning that sbe did see or could see tbe defendant coming out of tbe alley, leading from tbe rear of bis residence, into Bodine street. Tbe witness evidently intended to be understood as meaning that tbe defendant did not come out of tbe front door of bis bouse on Montrose street; that be first came into ber view on Bodine street and that, although she did not see him come through the alley into Bodine street, he must have come that way in order to reach the point where she first saw him. There was nothing in the testimony of these two witnesses which can be said to be inconsistent with the allegations of the affidavit upon which the defendant relied to sustain his motion for a new trial. “Whether or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court, and, in such cases, we will never reverse unless convinced of clear abuse of discretion” : Hunter v. Bremer, 256 Pa. 256. The action of the court below, in refusing a new trial, was a wise and proper exercise of its discretion.

The judgment is affirmed.  