
    No. 519
    LARKIN v. SMITH
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2995.
    Decided April 4, 1927.
    829. NEGLIGENCE — When a person is struck by a rope which is trailing an automobile having passed the person so struck, the only proximate cause for the accident is the trailing rope and this is not a concurrent or contributory act of negligence.
    480. EVIDENCE — Newly discovered evidence which is merely additional evidence, upon the same points given at the trial, is not sufficient ground for the granting of a new trial.
    First Publication of this Opinion
    Attorneys — Frank L. Leonard and Buch-walter, Headley & Smith for Larkin; John C. Thompson for Smith; all of Cincinnati.
   PER CURIAM.

This was an action for damages for presonal injuries, commenced in the Common Pleas Court of Hamilton County by Fannie Larkin against Bernard Smith.

The automobile of Smith was being driven south on Edwards Road, in said city, and made a left hand turn into Erie Avenue. Larkin observed Smith driving south, and waited for his automobile to pass. She then proceeded to cross the street on the pedestrian crossing. When she reached the center of the street, she was suddenly thrown down by the rope, which was trailing behind the automobile. Plaintiff claims damages on the grounds that the defendant had been negligent in allowing this rope to trail back of the automobile and also in making a short left-hand turn in violation of an ordinance of the City of Cincinnati.

The Common Pleas Court found for the defendant. The plaintiff claims error on the grounds that the verdict was against the weight of the evidence, and also for failure to grant a new trial on the grounds of newly discovered evidence. The Court of Appeals affirmed the Common Pleas, and found as follows:—

1. The automobile did not strike the plaintiff, but had passed, so the only proximate cause for the accident would be the trailing rope. This was not a concurrent or contributory act of negligence.

2. The newly discovered evidence is merely additional evidence upon the same points as given at the trial, and a new trial should not be granted unless the newly discovered evidence tends to prove some other facts. Kroger, Admr. v. Ryan, 83 OS. 299. Jacobs, Admr. v. Canine, 7 OA. 268.

Judgment affirmed.

Hamilton, P. J., Cushing & Buchwalter, JJ., concur.  