
    GEORGE L. ELKINS v. PEOPLE OF PORTO RICO.
    San Juan,
    Law,
    No. 622.
    1. A new trial will not be granted because of newly discovered evidence when tbe same is merely cumulative.
    2. Surprise regarding the line of evidence developed at a trial will not be considered as sufficient ground for setting the verdict aside when the alleged evidence is of a character that ought to have been foreseen by the party complaining.
    3. A new trial ought not to be granted when the court is of opinion that the issues were well before the jury, and that the trial in and of itself was a fair one, and when the court cannot say that the verdict would probably be different, even with the alleged newly discovered evidence before the jury.
    4. Tt is a well-settled rule that surprise may be, not that it must be, a ground for a new trial. It is always a matter of discretion with the court.
    Opinion filed February 12, 1910.
    
      
      Messrs. Sweet & Wilcox, attorneys for plaintiff.
    
      The Attorney General of Porio Pico, for tbe island.
   Podey, Judge,

filed tbe following opinion:

Tbis cause is before us on a motion for a new trial. It was tried before tbe court and a jury, November 26tb and 27th, 1909. It is an action for personal injuries, and tbe damages are laid in tbe sum of $5,800. Tbe accident out of wbicb tbe cause arose is alleged to bave occurred on December 23, 1908, by reason of tbe motor car, in wbicb plaintiff and a comjsanion were riding on tbe public road of tbe defendant near Bayamon, becoming entangled witb a telegraph wire that was, as alleged, negligently permitted to stretch, or bang across tbe road about a foot above tbe ground. Tbis telegraph line belonged to tbe insular telegraph system, wbicb is owned and operated by defendant, tbe people of Porto Rico.

Tbe first issue in tbe cause was raised by a demurrer to the complaint on tbe ground that the people of Porto Rico could not be sued without their consent. Tbis was argued witb great ability by both sides, and we filed a rather lengthy opinion on tbe issue under date of September 7, 1909, wherein we held that defendant could not be sued without its consent, but that in tbis particular case, if the proofs on tbe trial should warrant it, or, in other words, if tbe facts brought tbe case within the terms of § 404 of the Political Code of 1902 of Porto Rico, that then tbe people of Porto Rico bad by law consented that they might be sued.

The facts developed on tbe trial were about as follows: Plaintiff bad an automobile for sale, and went to the town of Toa Alta, with a view to selling it to a certain Doctor Moret, who lived there. He arrived about 9 o’clock in the morning, and, as he contends, was joined by the Doctor, who took a spin around the town with him to try the machine, the Doctor having charge of the guiding wheel, and that then both started out into the country with the machine. In their testimony both plaintiff and this companion claimed that this wire was stretched across the road about a foot above the actual surface, and that no flagman or flag, or any one to give notice of the danger, was upon the road, and that hence they ran into the wire, which completely demolished the machine, and injured plaintiff as he claims,— although the evidence as to any permanent injury was not very positive or satisfactory at the time of the trial. Plaintiff and his companion claimed also that no person was in sight at all when the accident occurred, and that they were exercising all due and proper care in speeding along the road at the time. The defense claimed, and several of their witnesses testified that plaintiff, when he arrived at Toa Alta, got out of the machine and went into the hospital or house where the Doctor was. That the Doctor had been drinking considerably all the morning previous to the arrival of plaintiff, and that he continued to drink brandy after the' arrival of plaintiff until the bottle he was drinking out of was exhausted, and that he then sent a hoy out to procure a bottle of rum, most of which was also used up before plaintiff and the Doctor started out to test the machine. These witnesses testified that the Doctor appeared to be under the influence of liquor before plaintiff arrived, and was a good deal more so as the parties started away. It was not to any extent in evidence that plaintiff himself was actually under the influence of liquor at all. There was a good deal of other evidence on botb sides of tbe case, and tbe whole case was argued to tbe jury, with great ability by counsel for botb sides, yet tbe jury unhesitatingly found against plaintiff. No complaint is made regarding tbe court’s instructions to tbe jury, and after a reexamination of them we are satisfied that in that regard tbe cause was fairly submitted.

Tbe grounds set out as a reason why a new trial ought to be granted are:

(1) That tbe evidence is insufficient to sustain tbe verdict, and that it is against tbe weight of it; (2) That it is against tbe law; and (3) Because of tbe unfair method adopted by defendant in charging intoxication of plaintiff’s companion and himself, but not developing this claim or line of defense until, as contended, it was too late to afford plaintiff an opportunity to properly rebut it.

It is seldom that we have seen a more strenuous effort on a motion for a new trial than has been made by counsel for tbe respective parties here.

Counsel for plaintiff has procured, and filed in support of tbe motion, affidavits of five policemen who were supposed to have been on duty about tbe time of tbe accident at Toa Alta, and all of them swear that plaintiff did not go into tbe bouse of tbe Doctor at all, and that be did not drink, and that tbe Doctor did not drink, and neither of them were under tbe influence of liquor when they departed from the town on that morning. The affidavits of Julian Marrero and José Julian Hernandez were also filed, — who say that they were riding along tbe road, and that tbe automobile passed them just before tbe accident occurred, and that there was no one on tbe road to a'ive warning of the dangerous position of the wire, etc. To counteract this, defendant filed the affidavits of one or two of the same policemen, who set forth that they did not understand the contents of their affidavits when they gave them to plaintiff’s counsel, and further, defendant filed an affidavit from one Antonio Gonzales Galvarin, who states that he was in the hospital at the time, and that plaintiff and the doctor were there, and that the two men did drink considerably, particularly the Doctor, and that he (affiant) drank with them. Defendant filed several other affidavits tending to show that Marrero and Hernandez, the two other persons who made affidavits for plaintiff on this motion, and who pretended they were along the road at the time on horseback and saw the accident, were not, in fact, there at all, but were in the town of Toa Alta during all the morning of that day. They also filed an affidavit of one José de Diego, a cigar maker of Toa Alta, who states that he also was in the hospital, and that both plaintiff and his companion, the Doctor, took several drinks there, and remained about an hour. They also file the affidavit of Arturo Lopez, who in like manner swears that plaintiff and his companion did enter the Doctor’s office, and that he saw both depart in the auto, and saw the affiant Hernandez in the town long after they had gone. Defendant also filed affidavits and police registers tending to show that the five policemen who made affidavits for the motion were on night duty at the time, and that it was their custom to retire when going off duty at six o’clock in the morning. That none of them were seen around the doctor’s office or the automobile that morning, etc. An affidavit of Mr. Timpson, the superintendent of telegraph of the island, was also presented, stating that some time before the trial of the case he met one of plaintiff’s counsel in a restaurant, and informed him that Dr. Moret was intoxicated at the time of the accident, and hence it is contended that plaintiff through his counsel had plenty of notice that intoxication would be proved to support a claim of contributory negligence in the plaintiff through his companion.

. We have gone entirely through this mass of affidavits in support of and against this motion for a new trial, and, with the exception of Mr. Timpson’s affidavit, the statements are absolutely contradictory of each other, and we cannot but arrive at the conclusion that several of the affiants have sworn to untruths.

From the careful examination we have just made of the whole record, including these affidavits, and of the briefs of counsel, and the law regarding motions for new trials, we cannot see that there was during the trial any surprise such as would warrant the granting of the motion. The main issue was whether the island, through its agents, negligently left this wire in the dangerous position in which it was, without sufficiently guarding against injury to people who passed on the highway. There was positive evidence in the cause that while the repair man was inside the fence, fixing the wire, some distance away, that the danger point was flagged, and that a boy was kept on the road, who endeavored to stop plaintiff and his companion as they speeded by, but that they paid no attention to him. This was corroborated by one witness, who said he came up from the opposite direction and saw the boy signaling them. There was also evidence tending to show that plaintiff himself, immediately after the accident, as soon as he could speak, accused ■ his companion, Doctor Moret, of being responsible for the mis-, hap. It is pointed out to us by counsel for defendant that if j the affidavits of Marrero and Hernandez; who swear they saw ! tbe accident as they rode along the road, are true, they conflict with the testimony of plaintiff and his companion, both of whom testified positively during the trial that they passed no one, and saw no one at or near the scene of the accident, or for some distance either way from such point. Counsel for plaintiff, in his able brief in support of this motion, has exhaustively reviewed the law upon the subject, and made a commendable effort to apply it to the facts as a warrant for the motion, but, with all his ability, a careful reading of his argument does not convince us that he is entitled to have the motion granted. On the opposite side counsel for the island, without half the effort, easily demonstrates, because, as we think, the law is with him, that the verdict ought to stand. We cannot say that if we should grant a new trial the verdict would be any different. It would, as we see it, simply put before the jury a lot of cumulative evidence with reference to the intoxication of Dr. Moret, that would, as stated, be contradicted by the other side as indicated in these affidavits. All of the witnesses who testified as to the intoxication on the main trial were severely cross-examined, and both plaintiff and his companion, who were educated and intelligent men, contradicted the statements positively on the stand themselves. .The jury might well have believed that plaintiff himself was not intoxicated, and that he was not in fact a drinking man, while they might well have believed the direct contrary of his companion Dr. Moret, and, of course, anything thát tended to prove contributory negligence of Dr. Moret also went against plaintiff’s right to recover as he, knowing the man’s condition, went with him in the automobile, and permitted him to manage the guiding wheel of the machine. But apart from all this, it may well be that the jury paid no attention to this question of intoxication at all, and that they took tbe evidence of tbe boy and tbe bystander wbo testified that considerable effort was made to signal plaintiff and bis companion to stop and not to run into tbe wire. We bave to look at tbe evidence in tbis case coldly as we find it, and we do not tbink tbat any proper announcement was made by counsel for plaintiff of any surprise during tbe trial, and it is universally beld tbat to avail a plaintiff, or whoever loses a case, advantage must be immediately taken of surprise, and a voluntary nonsuit taken, or time requested within which to give the party affected an opportunity to rebut tbe unexpected evidence. See 29 Cyc. Law & Proc. p. 871, notes and cases cited. “A new trial will not be granted on tbe grounds of newly-discovered evidence when such evidence is merely cumulative, or is upon unimportant matters in tbe case, or where, in tbe opinion of tbe court, such evidence, if produced, would not affect tbe action or verdict of a jury.” Brown v. Evans, 8 Sawy. 488, 17 Fed. 912; see also Chandler v. Thompson, 30 Fed. 38; see also our opinion in Paitel de Morsommó v. Yauco, 3 Porto Rico Fed. Rep. 405.

“Tbe mere fact tbat a party was surprised by tbe testimony of a witness is not ground for a new trial, but it must also be shown tbat its effect was to deprive him of a fair trial.” Sommers v. Carbon Hill Coal Co. 91 Fed. 337.

A reading of tbe chapter under tbe title “Surprise” in Graham & Waterman on New Trials, vol. 3, pp. 75 et seq., informs . us tbat courts interfere in such cases with reluctance, and tbe j rule is laid down tbat surprise may be, not must be, a ground i for a new trial.

We bave a distinct recollection of tbe facts in tbis case as tbey were developed on tbe trial, and of tbe appearance of tbe witnesses on tbe stand, and of tbe ability witb wbicb plaintiffs counsel argued tbe case to tbe jury; and we cannot say that if all of tbe alleged evidence set forth in these affidavits was placed before the jury on a new trial the verdict would be any different. Tbe law is that when tbe court takes this view of tbe situation tbe new trial should be denied.

Therefore, an order will be entered denying the motion.  