The facts in this case are set forth in the former opinion, ante, p. 671. The correctness of the proposition stated in the first and second points of the syllabus Avas not challenged upon the reargument; but it Avas insisted that the court did not sufficiently consider the error alleged in sustaining objections to a question asked by the defendant in the cross-examination of the witness Garner, nor the alleged error in the overruling of the motion for a new trial on the ground of newly discovered evidence.
1. The Avitness Garner had testified to the examination made by him and his associates after their return from taking the plaintiff to Lincoln, and to the discovery that the wire in question Avas low enough to have caused the accident, and that there Avas no other obstruction which could have caused the same. Upon the cross-examination' *678he admitted that he told Dr. Foss before making this investigation'that he thought the limbs of the tree knocked the plaintiff off the cars. The cross-examination was continued by the defendant as follows: “Q. Now, Mr. Witness, you knew that this tree was there, did you? A. Yes, sir. Q. And you knew that before you told Dr. Foss of it? A. Yes, sir. Q. And you knew where the tree was, didn’t you? A. Well, I knew about where it was; yes, sir, right there beside the track. Q. And you knew that the point where you saw Mr. Todd fall off and where this wire was over west, of this tree, didn’t you know it at that time? A. That where Todd fell was over west of the tree? Q. Yes, sir; that is, where you claimed he fell off? A. Well, sir, I can’t say as to how far it was from the tree. Q. Didn’t you know at that time it was some ways west? Didn’t you know that the wire was some distance west of that tree? A. Well, I can’t say that I did. Q. Well, did you know at the time that you were talking with Doctor Foss that you hadn’t passed that tree, if Avhat you have stated heretofore was true, that Todd fell off west of it, at the time the accident occurred?” To this question the plaintiff objected as not a cross-examination, and because the question was not intelligible, and assumed certain facts not shown to have been testified to. This objection was sustained. The question was complex in form and involved in meaning, and such as might be fincomprehencled or misunderstood by the witness, and Ave think the court properly sustained the objection on that-ground. The defendant did not make any offer to simplify the question, ending his cross-examination with the sustaining of this objection. We still agree with the .statement in the former opinion that, if the witness had made the admission sought to be elicited by the question, it would not have conflicted with his former statements; but, whether this be so or not, the question in the form in which it was put was objectionable for the reasons we have stated, and the district court was right in sustaining the objection thereto.
2. To entitle a party to a new trial on the ground of *679newly discovered evidence, it is necessary for him to show that lie could not with reasonable diligence have ascertained its existence and jiroduced this evidence at the trial; and this must be established, not by the conclusions of the witness supporting the application, but by facts and circumstances from which the judge may determine whether the party did in truth use such diligence. The allegations in the affidavit made by the attorney for the defendant to establish such diligence are that he made inquiry of all whom “affiant had reason to suspect knew anything of the fact”; and in making such inquiries for facts “affiant talked with every one who he had reason to suppose would be informed as to such facts, and all that affiant had any reason to believe would have been in the vicinity of the accident at the time it occurred, and all that affiant had any reason to suppose had any business near the accident at the time it occurred.” This affidavit made the witness the sole judge of where and of whom his inquiries should be made. It stated no facts from which the court could say whether the judgment of the witness was ■ properly exercised, and in this we think it was fatally defective. Goracke v. Hintz, 18 Neb. 390, and cases there cited; Richter v. Meyers, 5 Ind. App. 33; Smith v. Williams, 11 Kan. 104. For this reason alone the application should be denied, and it is not necessary for- ns to reexamine the question whether the newly discovered evidence was cumulative or not.
We therefore recommend that the former judgment of this court be adhered to.
Fawcett and Root, CC., concur.By the Court: For the reasons stated in the foregoing-opinion, the former judgment of the court is adhered to.
Affirmed.