
    [No. 7945.
    Department Two.
    September 29, 1909.]
    Charles Schoening, Respondent, v. Lila Young, Appellant.
      
    
    Municipal Corporations — Streets—Collision with Automobile-Contributory Negligence — Evidence—Suejtciency. In an action for injuries to plaintiff’s horse and buggy in a collision with defendant’s automobile, where the evidence is conflicting as to whether plaintiff was guilty of contributory negligence in driving on the left side of the street near a turn, findings for the plaintiff are supported by evidence that the automobile struck the left side of the buggy and horse before it had turned straight with the street.
    New Trial — Newly Discovered Evidence — Diligence. A new trial for newly discovered evidence is properly overruled where it appears that the evidence was known but not produced because its necessity was not anticipated.
    Appeal from a judgment of the superior court for King county, Albertson, J., entered December 5, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages sustained through a collision.
    Affirmed.
    
      Charles Petrovitshy, for appellant.
    
      Guie & Guie, for respondent.
    
      
      Reported in 104 Pac. 132.
    
   Per Curiam.

The appellant, driving an automobile, and the respondent, driving a horse hitched to a buggy, collided near the junction of Rainier avenue and Charleston street, in Georgetown, King county, Washington, and the respondent, conceiving that the appellant was at fault, brought this action against her to recover the damages suffered by his property by reason of the collision. Appellant took issue with the allegations of the respondent, contending that the respondent was at fault. A trial was had on the issues made, before the court sitting without a jury, resulting in findings and a judgment in favor of the respondent for the sum of $264. This appeal was taken therefrom.

The evidence shows that the collision occurred on the evening of December 3, 1907, shortly after it became dark. The appellant approached the junction of the avenues in her automobile, traveling on Rainier avenue at a speed of about ten miles per hour; while the respondent approached the junction from Charleston street, traveling at the gait at which a carriage horse ordinarily trots. The appellant reached the junction first, and, without slackening the speed of the automobile, started to turn into Charleston street and collided with the respondent before the automobile had completed the turn.

' The parties do not agree as to the exact place in the street the collision took place. The appellant contends, and her evidence in part at least tended to support her, that the automobile turned immediately on reaching the intersection of the street, keeping all the while on the right side of the center of the street, and that the machine was well to the right of the center when the collision occurred. On the other hand, the respondent insists that the appellant, on approaching the corner, was traveling at too great a speed to make the turn directly, and crossed to the left of the center of the street before completing the turn, colliding with respondent’s horse and buggy on that side of the street. The point is material on the question of contributory negligence on the part of the respondent, for if it be true that the appellant was negligent, that she approached the junction of the street and attempted to make the turn at too great a speed under the conditions as they then existed, the respondent was likewise guilty of negligence contributing to his injuries if he approached the junction traveling at a trot on the side of the street he could expect persons obeying the statutes and the rules of the road to be traveling upon. But if he was upon the proper side of the street, there is nothing in the record that indicates negligence on his part. On this question we are not inclined to disturb the findings of the trial court. While, as we say, the evidence is in conflict, and each side seemingly was supported by about an equal number of witnesses, the concomitant circumstances, although meagerly perhaps, support respondent’s contention rather than the appellant.

When the automobile approached the crossing it was traveling, according to the chauffeur, some five feet distant from the curb. It struck the respondent’s horse on the left hip and the buggy on the left front wheel, and this after the automobile had proceeded along Charleston street some fifteen feet and before it had turned straight with the street. These circumstances support the respondent’s account of the accident, rather than the account of appellant; for if the horse and buggy had been approaching on the appellant’s side of the street the collision could hardly have taken place in the manner here described; and that it did take place in this manner there is no dispute in the evidence.

The appellant further contends that the court erred in overruling her motion for a new trial. This motion was based on the ground of newly discovered evidence. But a perusal of the affidavits filed in support of the motion makes it clear that the evidence thought to be newly discovered was not unknown to the appellant at the time of the trial; or, at least, it was not so far hidden that it could not have been found by the exercise of reasonable diligence. This, indeed, is hardly denied by the appellant, but she contends that she did not anticipate the turn the action would take and the necessity for the evidence that she now seeks to produce, and did not produce it for that reason. But manifestly this is not a sufficient cause for which to grant a new trial.

The judgment is affirmed.  