
    Wytheville.
    Taliaferro v. Shepherd.
    June 13, 1907.
    Absent, Keith, P;
    1. New Tkiai,—Variance Between Allegation and Proof—Failure to Object ' to Evidence—Waiver.—A verdict will not be set aside on account of a variance between tbe allegation and the proof, where the party ... making the motion made no objection to the admissibility of the evidence when offered, and submitted no motion to exclude it after-wards, but, on the contrary, accepted the issue irregularly tendered, and undertook to maintain his side of the case by countervailing testimony. The objection will be deemed to have been waived.
    2. New Tkiai—After-Discovered Evidence—Diligence.—A motion for a new trial, on the ground of after-discovered evidence, will be overruled, where, as in this case, the proffered evidence was not newly discovered, or could have been produced at the former trial by the exercise of reasonable diligence.
    Error to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.
    
      Affirmed.
    
    The opinion states the case.
    
      Meredith & Cocke, for the plaintiff in error.
    
      Henry R. Pollard and George C. Gregory, for the defendant in error.
   Whittle, J.,

delivered the opinion of the Oourt.

This action of trespass on the case was brought by W. T. Shepherd, the defendant in error, against the Oity of Richmond, W. E. Cutshaw, Oity Engineer, and his assistant, P. P. Taliaferro, the plaintiff in error, to recover damages for the alleged wrongful act of the defendants in raising the grade line of 'the sidewalk and street in front of the ifiaintiff’s dwelling, by filling in earth, stone and gravel.

The trial resulted in a verdict in favor of the oity and Guts-haw, and an adverse verdict and judgment against Taliaferro; and upon his petition this writ of error was awarded.

The chief, ground of complaint is that, in the absence of any averment in the pleading to that effect, the jury were instructed and based their finding upon the pretension that the grade line given- by Taliaferro to the contractor charged with the construction of the dwelling was erroneous, which error it is alleged occasioned the damage sustained by the plaintiff. In other words, the gist of the charge, which practically permeates all the assignments of error, is that there has been a material departure in the evidence and instructions from the cause of action set out in the declaration.

Conceding, as an original proposition, that the procedure was amenable to that objection, it is, nevertheless, clear that Taliaferro is estopped by his conduct from relying upon that ground of exception. He made no objection to the admissibility of the evidence when offered, and submitted nlo motion to exclude it; but, on the contrary, accepted the issue irregularly tendered by the plaintiff, and undertook to maintain his side of it hv countervailing testimony. He took chances of winning on that issue, and having lost, upon familiar principles, his objection must he considered as waived. S. V. R. Co. v. Moose, 83 Va. 827, 3 S. E. 796; Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S. E. 869, 70 L. R. A. 999; Richmond Ry. &c. Co. v. West, 100 Va. 188, 40 S. E. 643; Portsmouth St. R. Co. v. Peed, 102 Va. 662, 47 S. E. 850; N. N. & O. P. Ry. &c. Co. v. McCormick, 106 Va. 517, 56 S. E. 281. There was also an express waiver by Taliaferro of objection to tbe consideration by tbe jury of evidence tending to show that he gave the grade line in question upon verbal ratber than written application,, wbicb eliminates that feature of tbe case.

We, therefore, concur in tbe opinion of tbe trial court, that tbe real question in tbe case at trial was whether Taliaferi'O' furnished Tign'oa*, the contractor, a correct grade line—which issue, as observed, was distinctly submitted to tbe jury upon conflicting theories of the evidence on correct instructions, and was resolved in behalf of the plaintiff—and that the contention of the defendant, that be was surprised and placed at disadvantage by the variance between the pleading and evidence, is not sustained by the record.

Tbe remaining assignment of error demanding our attention involves tbe action of tbe court in over-ruling tbe motion of tbe defendaxxt for a new trial, on tbe ground of newly-discovered evidence.

It appears by affidavits filed in that connection, that, after the jury had returned their verdict, affiants dug into the gravel sxdewalk in front of plaintiff’s residence, and discovered that the einider walkway was not eighteen inches below tbe surface of the px*esent sidewalk, as alleged in the declaration and testified by tbe plaintiff, but that tbe true depth was only seven and one-quax’ter inches. Tbe consideration of the defendant was directed to the plaintiff’s contention in regard to the extent of tbe grtavel, both by the pleading and evidence, and Ms attention was specially called to the identical method of ascertaining the correct quantity of material above tbe cinder, subsequently adopted, by one of bis wwn witnesses whlo made that suggestion in bis testimony before tbe jury. Tbe evidence was concluded April 26, the verdict x’emdered May 6, which afforded tbe defendant ample time to- have procured this piece of evidence and submitted it to the jury. TTeverthedesis, tbe test thus x*epeatedly brought to bis notice before verdict was not made until May 13.

It cannot be affirmed of these undisputed facts, that the evidenee relied on was either newly-discovered, or that it could not have been.' produced at the former trial by the exercise of reasonable diligence; yet the concurrence of these circumstances is essential, under the established! practice in this State, to entitle a litigant to a new trial on that ground. Our reports contain many cases illustrative of the well settled rule, among which attention may be called to the following: St. John v. Alderson, 32 Gratt. 140; Tate v. Tate, 85 Va. 205, 7 S. E. 352; Field v. Com’th, 89 Va. 690, 693, 16 S. E. 865; Norfolk v. Johnakin, 94 Va. 285, 26 S. E. 830; Wright v. Agelesto, 104 Va. 159, 51 S. E. 191.

Upon the whole case, we are of opinion that the judgment ought to be affirmed.

Affirmed.  