
    Killebrue v. Western & Atlantic Railroad Company.
    February 28, 1912.
    Action for damages. Before Judge Fite. Whitfield superior court. September 17, 1910.
    
      Atkinson & Born, for plaintiff.
    
      Tye, Peeples & Jordan and Julian McCamy, for defendant.
   Eish, C. J.

±. As, under the law and the evidence, the verdict rendered was demanded, the judgment refusing a new trial will not be reversed on the ground of an erroneous instruction to the jury, or because the court failed to charge on a given subject.

2. The ground of the motion for a new trial, based on alleged newly discovered evidence, is not sufficient cause for a new trial, for the reason that the evidence set forth is not newly discovered; as it appears from the affidavit of the movant himself that he knew of the alleged newly discovered evidence before the trial, but did not then know that the defendants had or would introduce the evidence which the movant desired to contradict by the alleged newly discovered evidence; and moreover, it was merely cumulative and impeaching in its character.

Judgment affirmed.

All the Justices concur, except Atkinson, J., disqualified, and Sill, J., not presiding.  