
    Georgia Southern and Florida Railway Co. v. Zarks.
    Argued June 6,
    Decided July 25, 1899.
    Action for damages. Before Judge Felton. Houston superior court. October term, 1898.
    
      Hall & Wimberly and R. C. Jordan, for plaintiff in error.
    
      C. O. Duncan, contra.
   Fish, J.

1. A request to charge, though based on a theory which might constitute a good defense to the action, was properly refused when it appeared not only that no such defense was set up, but that the defense actually relied upon was totally different.

2. Evidence is not merely cumulative, though it may have some bearing upon the main issue in controversy, if it relates to new, distinct, and material facts about which no witness testified at the trial. See Dale v. State, 88 Ga. 552. The newly discovered evidence in the present case, it being in any view a close and doubtful one, was not, under the rule just stated, merely cumulative,' and it was of sufficient importance to render the granting of a new trial proper and right.

3. The charges complained of in the motion for a new trial were not, in view of all the instructions given to the jury, erroneous or misleading.

Judgment reversed.

All the Justices concurring.  