
    [No. 3,932.]
    WILLIAM MOORE v. THE LOS ANGELES INFIRMARY.
    Gbantino a New Tbiap.—The Supreme Court will not disturb an order of the District Court granting a new trial on the ground of accident which ordinary prudence could not have guarded against, unless there was an abuse of discretion on the part of the Court below.
    
      Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.
    Ejectment to recover a tract of land in the city and county of Los Angeles. The defendant had judgment, and the plaintiff moved for a new trial. One of the grounds on ■which the motion was based was surprise, which ordinary prudence could not have guarded against. The case was tried before a jury. On the trial, one Seebold was a witness for the defendant, and testified to the quantity of land contained within the boundaries claimed by the plaintiff. He made his estimate from fixing the boundary of the land claimed by the plaintiff along the line of a certain street, and past certain rocks. After the verdict, this witness took an affidavit, in which he stated that he was mistaken in his testimony as to where the line of the street was, and as to where the rocks were located, and that the mistake had caused him to fix the quantity of land at too many acres. The plaintiff also filed an affidavit stating that he was surprised by Seebold’s testimony, and had no time to procure a correction of the same before the case was submitted. The Court below granted a new trial, and the defendant appealed from the order.
    
      Glassell, Chapman & Smiths, for the Appellant.
    
      O’Melveny & Hazard, for the Respondent.
   By the Court :

The District Court granted a new trial, on the ground of accident which ordinary prudence could not have guarded against. An examination of the record does not satisfy us that there was any abuse of discretion on the part of the Court below.

Order affirmed.  