delivered the opinion of the court.
Upon the evidence in this case the jury were warranted in finding that the driver, the employe of appellant, was negligent in proceeding, however slowly, without looking ahead, and. thus discovering the presence of the child in his course upon the car tracks. Or, if the jury had believed from, the evidence that he did see the child, the conclusion as to his negligence in attempting to turn his wagon so near to her would be equally strong. C. E. St. R. R. Co. v. Lewis, 68 Ill. App. 598; affirmed in 168 Ill. 249.
The evidence being sufficient to support the verdict as to negligence of appellant’s employe, and there being no question as to contributory negligence to be considered, it remains only to consider questions raised upon matters of procedure and the amount of the verdict.
The only complaint of counsel for appellant as to procedure relates to the denial of the motion for a new trial.
The affidavits setting up the discovery of new evidence are substantially as follows: That witness Eiston saw the injury; that the wagon was moving slowly and the child, appellee, ran into the wagon; that a woman standing upon the sidewalk at-the time acted in such a manner as to indicate that she was the mother of the child. And that witness Eoth saw appellee struck by a stone which was part of the load of the wagon; that the driver was proceeding slowly, and stopped as soon as the team could possibly be stopped, but too late to avoid the injury; and that the mother of the child was among those present on the sidewalk. The mother of appellee had testified that she was ill and confined to her house at the time. The only showing made as to diligence in effort to obtain this evidence before the trial, consists in averments of an affidavit by one of counsel for appellant, by which it is presented that affiant delegated the task of discovering evidence for appellant’s defense to another lawyer, and “ caused diligent inquiries to be made ” by such lawyer and by the driver of the wagon and his wife in the vicinity of the accident to discover names of persons who were eye-witnesses of the occurrence, and that as a result only one person was discovered, and nothing was learned as to the witness Eiston. Appellant made affidavit that the knowledge of the facts possessed by Eoth was first discovered after the trial.
There are two reasons why these affidavits were insufficient to warrant the granting of a new trial: First, they fail to show any facts sufficiently establishing diligence. The statement of the conclusion that “ diligent inquiries were made” is insufficient. Roth was employed in a drug store near by the place of the occurrence in question. He was the messenger sent for a doctor. It would seem very improbable that inquiry which was in fact “ diligent ” could have failed to discover him. Diligence did discover him within a few days after the trial. Second, the evidence is cumulative only. So far as it shows or tends to show the presence of the mother of the child on the sidewalk, it is not controlling. ¡Negligence of the mother can not be implied to the child in an action brought by the child. Chicago C. Ry. Co. v. Wilcox, 138 Ill. 370.
So far as it tends to corroborate the testimony of the driver, it is clearly cumulative.
We are of opinion that the court did not err in overruling the motion for a new trial.
¡Nor do we regard the damages as excessive. It is true that the expert testimony does not establish beyond doubt that the imbecility of appellee is a result of the injuries. But it does tend to show this fact. It appears that prior to the injury the child was apparently of ordinary mental capacity. It is unlikely that she could have been an imbecile before the accident and the fact remain unknown in the neighborhood where her parents resided. Evidence of such fact, if it existed, could in all probability have been readily obtained. The fact that she became imbecile after the injury is uncontroverted. The expert testimony establishes that this may have resulted from the injury.
We are of opinion that the verdict can not be disturbed upon the ground that it is excessive. The judgment is-affirmed.