
    Girardino v. Bir. So. R. R. Co.
    
      Damages for Setting Out Fire.
    
    (Decided January 23, 1913.
    Rehearing denied February 14, 1913.
    60 South. 871.)
    1. Appeal and -Error; Finding hy Trial Court; Revieio. — Findings by the trial court in determining a motion for a new trial grounded on newly discovered testimony are presumptively correct and the burden is on the movant to show error.
    2. Same; Review; Neto Trial. — Unless error is clearly shown the trial court will not be reversed for refusal to grant motion for a new trial.
    3. New Trial; Nowly Discovered Evidence; Cumulative. — Where a plaintiff was informed by the opening statement of the defendant that it expected to show as a defense to the action that the fire was set out and communicated from a trash pile in plaintiff’s enclosure, and not from defendant’s engine, and the plaintiff introduced evidence that there was no trash fire prior to the passage of defendant’s engine, newly discovered evidence to rebut the existence of a fire from the trash pile was merely cumulative and did not furnish ground for a new trial.
    4. Same; Diligence.- — On a motion for a new trial grounded on newly discovered testimony the movant must not only show the materiality of the evidence, but it must also be made to appear that the failure to produce it on the original trial was not due to any lack of diligence on the part of the movant.
    Appeal from. Birmingham City Court.
    Heard before Hon. Chas. W. Ferguson.
    Action by Frank Girardino against the Birmingbam Southern Railroad Company for damages for setting fire to and destroying the building belonging to plaintiff. Judgment for the defendant and the court having refused to set the same, aside plaintiff appeals.
    Affirmed.
    Allen & Bell, for appellant.
    The newly discovered evidence was sufficient ground for a motion for a new trial in this cause, unless the right to a new’ trial is merely an imaginary thing which has long since passed in the limbo of things that were, but are not. — Gob v. M. & G. R. R. Go., 44 Ala. 611; 29 Cyc. 881; 14 Ency. of PI. & Pr. 790; 48 Hun. 54; West Va. Lcvnd Go. v. May, 166 Ala. 124; 69 N. W. 76; 29 Cyc. 885; 111 N. W. 540; 46 S. W. 691.
    Percy, Benners & Burr, for appellee.
    Refusal to grant a new trial is not revisable unless error clearly appears. — Hall v. Glayton, 59 South. 235; Rents v. Bridges, 59 South. 63; Killian v. Killian, 169 Ala. 499. It must be shown, not only that the new evidence was material, but that it was not produced through any Avant of diligence on the part of the movant. — Jernigan v. Glark, 134 Ala. 313; McLeod v. Shelby M. & I. Go., 108 Ala. 81. Plaintiff was apprised of the defenses by statements of counsel for defendant and cannot plead surprise— Simpson v. Golden, 114 Ala. 336; Haskins v. Bight, 95 Ala. 282.
   de GRAFFENRIED, J.

A building of Frank Girardino was destroyed by fire. Just before the fire Avas discovered, a locomotive of the Birmingham Southern Railroad Company passed near the building. The theory of the said Frank Girardino who was the plaintiff in the court below, Avas that the servants of the said railroad company (the defendant in the court beloAv) Avho were in charge of said locomotive, while acting .Avithin the scope of their employment, so negligently operated the said locomotive as to cause it to emit sparks in dangerous and unusual quantities, thereby setting fire to the building; or that, on account of the improper equipment of the locomotive, sparks in unusual and dangerous quantities were emitted therefrom, and that the building Avas, by such sparks so emitted by the locomotive, set on fire and destroyed. Upon the above theories this suit for damages was brought by the plaintiff against the defendant, and in the suit the value of the burned building was sought to be recovered.-

There was evidence tending to uphold the theories of the plaintiff. There was evidence for the defendant tending to show that the locomotive, at the time referred to, was not negligently handled, but, on the contrary, that the defendant’s servants properly and skillfully managed it. There was evidence for the defendant, also, that the locomotive was in every Avay perfectly equipped. The defendant also introduced evidence tending to show that when the locomotive passed the point referred to a large trash pile, near the building which first caught fire, Avas on fire; and the jury had the right to infer from this evidence that the building Avas set on fire from the burning trash pile, rather than by sparks from the locomotive.

There was a jury trial and a verdict for the defendant. Thereupon the plaintiff made a motion for a neAV trial upon the ground of neAvly discovered evidence. The plaintiff sets up in his motion the fact that he knows but little of the English language; that he resided, at the time of the fire, several miles from the scene of the fire; that he produced on the trial all of the evidence which, by due diligence, he Avas able to discover before the trial; and that since the trial he has discovered several reputable witnesses Avho were at the scene of the fire, and Avho are prepared to testify that no trash pile Avas on fire before the locomotive passed the ill-fated building.

A neAV trial is, of course, granted for the sake of obtaining justice. It must be remembered, however, that' but for our statutes the granting or the refusal to grant a neAV trial by a trial judge in a civil case would be in the irrevisable discretion of the trial judge. The fate of such a motion, in a criminal case, is now under our statutes, solely within the discretion of the trial judge. The findings of a trial court are, on appeal, presumptively correct; and the burden is upon the appellant to show error. The verdict of a jury and the judgment of a trial court are solemn things; and they should not be overturned by an appellate court, unless a good, legal reason therefor is shown.

When the defendant stated its case to the jury, before any evidence was offered, its counsel stated “that defendant expected the evidence to show that the fire was communicated to plaintiff’s house, not from sparks from defendant’s engine, but from a trash fire which was burning iii the inclosure where plaintiff’s building was.” The plaintiff was thus, at this early stage of the proceedings, put on notice as to the character of the defense which the defendant proposed to make. The plaintiff did not, at this or at any other time, ask for a continuance, or that the trial be postponed, but proceeded with his evidence, and in doing so offered evidence tending to show that there was no fire of any sort on the premises before the defendant’s locomotive passed the building. In other words, the affidavits which the plaintiff introduced to sustain his motion were but cumulative of the evidence which he had already introduced before the jury which tried his case.

It may be that counsel, in opening their cases, frequently state that they expect their evidence to show facts which they utterly fail to prove; but, whether they do or not, statements of counsel operate as notice of what they do expect to prove, and in the trial of a case one should never underrate the strength of his adversary.

It may be, also, that the ignorance of the plaintiff of the English language, and the distance of his place of residence from the scene of the Are militated against him in the preparation of his case and in the discovery of all of the material evidence in the case. It is probable, however, that he had acquaintances who did understand the English language; and there was nothing to prevent him from employing some one who not only knew the English language, but knew the people who resided near the scene of the Are, to interview the people on the ground and ascertain the real facts in advance of the trial.

Many of the rules laid down in the books, with reference to the granting of new trials, are rules which are declared for the guidance of primary courts in such matters, and are not binding upon appellate courts when, on appeal, they are asked to revise the rulings of primary courts pronounced upon motions for new trials. The action of a primary court in refusing to grant a motion for a new trial will not be reversed, unless error in such ruling, is clearly shown. This is not only true, but when the motion is based upon the ground of newly discovered evidence the materiality of the evidence must not only be shown, but it must also be affirmatively shoAvn that the failure of the movant to produce the newly discovered evidence on the trial of his case Avas not due to a lack of proper diligence on his part. For the above reasons, this court cannot put the trial court in error for refusing to grant the plaintiff’s motion for a neAV trial. McLeod v. Shelly Manufacturing & Improvement Co., 108 Ala. 81, 19 South. 329;

Affirmed.

Doavdell, C. J., and Anderson and Mayfield, JJ, concur.  