1. We are unable to discover that the charge of the court to the jury was not strictly correct, and especially on the points argued by appellant’s counsel; but, in any event, his exception “to the definition of ordinary care, and also in regard to the admissions,” fell far short of calling attention to any real or supposed error in the charge. To cite authorities on this would be superfluous.
2. The affidavits used by plaintiff in support of his motion for a new trial on the ground of newly-discovered evidence were justly open to the assertion made by the court below that due diligence had not been shown, and that the proposed new evidence was cumulative only. On the hearing of the motion, it stood admitted that long before the trial the plaintiff knew that the affiant Molin was present when the accident occurred, and had so informed defendant’s claim agent, who, on the strength of this information, had compelled Molin’s attendance as a witness at the trial. He was not examined by either party, probably because he did not see anything that transpired until after plaintiff had received the injuries and was lying on the ground. At most, his testimony would simply tend to show where plaintiff fell. The real controversy here was as to the manner of the accident, and not whether it occurred a few feet east, or a few feet west, of Arcade street. The proposed testimony of affiant Mattson was clearly valueless.
Order affirmed.
(Opinion published 52 N. W. Rep. 969.)