dissenting. I am of opinion that the judge below erred in not granting a new trial because of the “ newly dis*354covered” evidence. Counsel for the defendant in error contended that the movant in the motion for new trial did not show sufficient-diligence in finding this evidence. The showing as to diligence was full and explicit, but counsel argued that it was contradicted by facts appearing in the record which showed that the evidence should have heen secured while the trial was in progress. A part of this argument was based on the statement that the trial of the case in the lower,court took four days, and that the evidence adduced on the first day of the trial put the defendant company on notice of this evidence, the plaintiffs wife testifying on that day that her fall was witnessed by two ladies sitting on the front porch of a certain house. This statement is not sustained by the record. In the first place, the record does not show that the trial of the case occupied more than a day. At the beginning of the brief of evidence is a statement that the trial began on a certain day (four days, excluding Sunday, prior to the date of the verdict), and in the body of the brief of evidence is a parenthetical statement that-the case was adjourned to the next day; but such statements are in no sense part of the evidence and should find no place in the-brief thereof, and their correctness is not verified by the judge’s approval of the paper as a true and correct brief of the evidence in the case. Again, the evidence of the plaintiff’s wife, as it appears in the record, shows that just before she was hurt a lady handed a. note to the conductor of the street-car. Nothing more appears in her testimony that could have put the company on notice of the evidence which it has since secured. Another witness, whose testimony appears below the statement that the court adjourned to the next day, testified that the conductor was handed a note by “a white lady” who “came from a house on the far corner, the right-hand corner of Luckie street.” She lived there, because witness “ was there to see her after the accident happened.” The two ladies whose testimony the company wishes an opportunity to place before a jury state, in their affidavits, that they were seated on the front porch of a house on the corner, and from that place witnessed the injury to the plaintiff’s wife. Neither of them gave any note or other article to the conductor, and neither of them left the front porch until after the injury. It is, therefore, not clear that one of these ladies is the person referred to in the record as having come from the house and handed the conductor a note. However this-*355may be, 1 think the record does not show that the evidence adduced on the trial gave the company’s counsel or officers any such notice as would have made it incumbent on them, in the exercise of ordinary care, to find these witnesses and have them present before the conclusion of the trial.
Even stronger than this is the movant’s showing that all efforts, even the most earnest and diligent, to secure these witnesses could have been of no avail. Such efforts would have proved unproductive, for the reason that these witnesses were, at the time of the trial, not in this State. Nor did the evidence relied upon as notice to the company give any notice as to what were their names. Had they been found in a near-by State and been willing to come immediately to Atlanta, still the record, as we have seen, fails to show that the trial lasted a sufficient length of time to enable the company to secure their evidence. One of the affidavits attached to the motion for new trial contains an unqualified statement that these witnesses “ were not in the State of Georgia at the time said case was tried.” The sources of the affiant’s knowledge do not appear. He does not make the averment as upon information and belief, but as based upon positive knowledge. Whether he had knowledge of the facts sworn to this court can not know; but the facts are such as could be known positively, and there is nothing in the record to authorize a conclusion that the affiant’s sworn statement to them as of his own knowledge had nothing behind it but information derived from others by hearsay. Whether the affiant was ini Atlanta during the trial of the case does not appear from the record. He states in his affidavit that he “ has had exclusive control of the trial of the . . cas & so far as” Ms firm is concerned', but it appears that there was another firm also representing the company, and the record does not indicate that this affiant was present at the actual trial of the case. At any rate the affidavit contains a positive statement as to the whereabouts of the witnesses, and this statement should he treated as stating the truth, as I have no doubt it does.. So treating it, the conclusion is irresistible that the motion for new trial should not have been denied because of any lack of diligence on the part of the movant. It is assuredly no lack of diligence to fail to secure evidence of the materiality and existence of which the party has no notice until after the trial has actually begun, when the witnesses who must be relied *356upon are at that time in another State and their names unknown to the parties. A party should not be prejudiced by a failure to make an effort which must have been fruitless.
It was also suggested that the defendant company should have had inquiry made at the houses in the neighborhood, to ascertain if any of the residents knew anything of the occurrence to be investigated. Whether the evidence of the witnesses above referred to could have been thus secured does not appear; nor whether they were in Georgia ; nor whether any one else in the house had been informed of what they had seen. But conceding that the course suggested would have resulted in the discovery of this evidence, the duty of exercising ordinary care to discover evidence did not carry with it the duty of making such a house-to-house canvass. Indeed, to my mind, the sufficiency of the showing of the movant is clear when due regard is had to the standard of diligence imposed in such cases by the code. This standard is that of ordinary diligence, while to sustain the contentions of the defendant in error and affirm the judgment below is to hold the party bound to exercise extraordinary diligence. The materiality and force of the newly discovered evidence can not be disputed. If it is true, then the trial which has been had resulted iu a grave miscarriage of justice. The verdict finds the defendant company liable in damages for' an injury for which, under this evidence, it was in no way responsible, and the plaintiff is awarded a considerable sum of money when the finding, if the facts had been known, should have been against him.