
    No. 929
    HAWKINS v. COMERFORD
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4436.
    Decided Oct. 22, 1923
    269. NEW TRIAL.
    Newly discovered evidence, may be granted on motion before term, and petition thereafter — Where judgment was directed, alleged vidnc of nw witness, which would take the case to jury, sufficient for granting.
    Error to Cuyahoga Common Pleas
    Attorneys — Mooney, Hahn, Loeser & Keough, for Hawkins; Edward Davidson, for Comerford.
   VICKERY, P. J.

Epitomized Opinion

Hawkins was injured in an accident by an automobile driven by Comerford, and brought this action to recover damages. Verdict was directed against Hawkins, and judgment rendered on the verdict. At a subsequent term, Hawkins advertised, and a witness came forward who witnessed the accident. The new evidence was set up in a petition for a new trial, on the ground of newly discovered evidence.

Common -Pleas Judge Kennedy held that a new trial was warranted, and the Appellate Court sustained his decision, as follows:

If the newly discovered evidence, when brought in court, would probably necessitate a different finding, or judgment of the court, or have a convincing tendency, the court below was warranted in granting a new trial on a motion before term, and on a petition after term, citing the rule, as laid down by it, in Federal Coffee Mills Co. v. Disbach, No. 3790, in its court.

The Common Pleas, having directed a verdict because of the insufficiency of evidence, there having been no testimony of any witness who saw the accident, and is under testimony of the new witness produced in "court, it would be impossible for the court, under the Ohio scintilla rule, to direct a verdict, the pase would necessarily have to go to the jury, and it came strictly within the rule laid down in the Coffee Mills Case, above, and other authorities.  