delivered the opinion of the court.
Appellant says that appellee committed perjury in swearing that he lost two fingers of his left hand so earlv in life that he does not remember the circumstances of that accident; while the fact is, as appellant contends, that such fingers were amputated at the Cook County Hospital in 1889, when appellee was at least twenty years of age, as a result of injuries that he received on the Santa Fe road.
The loss of these fingers was not in issue in this case. If this evidence had been offered on trial, it would not. have been competent, as it was wholly immaterial. There is here no claim for damages for such loss. On the contrary, appellee expressly states that they were cut off many years before the accident of which he complains occurred. So that the inquiry in that particular was concerning a collateral matter, and was calculated to mislead the jury.
That question not being here in issue, evidence thereon, elicited on cross-examination, can not be made the foundation of either contradiction or of impeachment. This is the settled rule.
It does not require the citation of authorities to establish the proposition that perjury can not be proved by affidavits. Unless the supposed offender, in his testimony, has contradicted himself beyond recall in matters material to the issue, witnesses to prove the perjury must be placed upon the stand and submit themselves to cross-examination, or records showing the crime must be offered on trial, subject to the scrutiny of his counsel. It follows that the affidavit filed in this case can-be considered only as newly-discovered evidence in support of the motion for a new trial.
The newly-discovered evidence is not sufficient to entitle appellant to a new trial. It is discrediting or impeaching only, and is not conclusive upon any point material to the issue. Hew trials will not be granted to enable parties to make a case somewhat stronger on a second trial. Conlan v. Mead, 172 Ill. 16.
Due diligence is not shown. How long before the trial appellant had knowledge that appellee had been injured on the Santa Fe road prior to the date of this accident, the record does not disclose. But the cross-examination of appellee shows that appellant knew this fact on the day of the trial, and Dr. Babcock, one of its witnesses, had known it since December 30, 1899, at which time appellee voluntarily stated it to him. Appellant offers no sufficient excuse for not presenting this evidence at the trial. If it was material on the motion for new. trial, it was material on the hearing.
“To authorize a new trial on the ground of newly-discovered evidence, it must appear that the evidence has been discovered since the trial, and that it could not' have been produced on the trial by the use of reasonable diligence. * * * On a question of diligence like this, a party ought to negate every circumstance from which negligence may be inferred.” Crozier v. Cooper, 14 Ill. 141; also see Dyk v. DeYoung, 133 Ill. 84, 85.
During the trial appellant asked that appellee submit to a personal examination by a physician to be selected by the court. Appellee refused. Then appellant, by questions and offer, attempted to prove that such an examination would not be injurious to appellee. Objections to such questions and offer were sustained. These rulings are assigned for error, Appellee had refused to be then examined. The court had no power to compel him to submit to an examination. The incident was closed. Whether or not, in the opinion of the physicians, such an examination would be harmful to him, became and was wholly immaterial. The rulings of the court were right.
Instruction Ho. 20 was properly refused. It wholly ignores the question of the negligence, if any, of appellant.
If instruction Ho. 21 is proper, it is fully covered by instructions Hos. 4, 15 and 17, which were given. When a ■ principle of law is once stated in a given instruction, it is not error to refuse another instruction which states the same principle in other words.
We can not say that the damages are excessive. It is admitted that appellee was a passenger on the street car at the time of the accident. The negligence of appellant is established by the verdict. If the evidence of the appellee as to the character .and permanence of his hurts was stricken from the record, the testimony of Dr. Lockhart, the attending physician, as to such injuries, and that of his neighbors as to his health before and after the accident, if believed by the jury, sustains the verdict.
Finding no reversible error, the judgment of the Superior Court is affirmed.