The opinion of the court was delivered by
Barrett, J.In the first place, upon the evidence that was *315given on the trial in the county court, we are strongly impressed that the verdict ought to have been for the defendant; though the evidence might not stand so decisively for the defendant as to call upon the county court, on motion in that behalf, to set aside the verdict.
We start, then, with the idea that the ends of justice would be likely to be served by having the case tried again. The apparent justice or injustice of the verdict is always proper to be considered, and creates a kind of atmosphere affecting the consideration to be given to other elements of the case.
In the next place, in determining the question whether the party was in the exerdise of reasonable diligence, and failed of ascertaining the existence of, and of using, the newly discovered evidence, without any lack in this respect, it is the duty of the court to have regard to the state of the case as it stood upon the evidence on the trial. If, upon the main facts in issue, the evidence stands so that a party may well claim and. expect a verdict, such party, in asking for a new trial, would deserve a different consideration from one who had not been active and efficient in producing such a state of the evidence in his own favor.
The interests of judicial administration do not favor the practice or policy of burdening the trial with a needless accumulation of evidence ; and when a party has produced evidence sufficient in the judgment of the court fairly to entitle him to a verdict, and yet fails of getting such verdict, the fact that he had not enquired further for more evidence, even though such enquiry would have resulted in his finding it, and in finding the very evidence newly discovered, would not be conclusive against him, on the score of a lack of diligence. If he prosecuted his enquiry for evidence so far as to result in his producing sufficient fairly and reasonably to entitle him to a verdict, it could hardly be said that he was lacking in reasonable diligence, because he did not go further, even though-by going further he might have found more, and perhaps the very evidence that may now be regarded as material, and, with the other evidence, decisive of the case.
The alleged newly discovered evidence bears directly upon the .main issue in the case, viz.: What was the condition of the horse *316when he'went into the defendant’s keeping ? And it did so by its tendency to show that he was in a defective condition, and exhibited peculiar manifestations of it. So far as the peculiar manifestations indicating inward disease are concerned, the evidence was to new and independent facts, and not cumulative by being only additional to the same facts that other witnesses had testified about. In this respect, this part of the evidence .does not fall within any idea of the rule claimed as to cumulative evidence.
But it is now understood that evidence to the same facts that other witnesses have testified about, if these facts are material, and would be controlling in the case if established, is not excluded by the rule as to cumulative evidence, provided such evidence, in addition to that already given, would with reasonable certainty produce a verdict the other way.
Applying these general views to the case, the evidence was newly discovered, is material, reasonably sure to produce a different verdict, is not obnoxious to the rule as to cumulative evidence, and the petitioner is not chargeable with laches in not having discovered and used it on the former trial.
New trial granted.