(dissenting).
While I recognize that a witness’ recanting, after judgment, of the testimony he gave at a trial presents in any case an unsatisfactory situation, still I think that a new trial should be granted for that reason only in extreme cases and when the trial judge — not the appellate court— believes that there has been a miscarriage of justice and that in all probability a new trial will produce a different result.
The factual situation in the case at bar is quite clear-cut. An unfortunate collision occurred between two cars trav-elling in opposite directions in a severe snow storm which had covered the highway with snow and restricted visibility to about 100 yards. In describing the condition of the road at and near the scene of the accident, a local sheriff testified that the newly fallen snow covered packed snow remaining along the center of the highway from a previous storm. He expressed his belief that trees along both sides of the road prevented the snow in this area from melting as quickly as it did in other places. No description of the trees was given or any reference made as to their location along the paved highway.1 There was no conflict in the testimony as to the severity of the storm, and the highway patrolman found the road “particularly hazardous” as he drove to the scene of the accident. Plaintiff testified that he first observed defendant’s car when it was about 50 yards *582away and was traveling towards him in a normal manner in the proper lane of traffic; that when about 30 or 35 yards away, it suddenly went out of control, skidded across the center of the highway and collided head-on with his vehicle. This was the only evidence to support an inference of negligence on the part of the defendant. She defended upon the grounds that the collision was unavoidable.
Defendant’s attorney, in his opening statement and in closing argument, referred to the testimony of the sheriff which related to the packed snow and ice underneath the new snow by way of a possible explanation of what caused the defendant’s car to skid out of control. There was no testimony that the skidding was actually caused by the old snow or ice. After the trial, the sheriff made a further investigation of the permanent conditions of the highway at the scene of the accident and found that at that particular spot, there were trees on only the west side of the road. He then became concerned with the correctness of his testimony as to packed snow and ice being near the point of collision. He conferred with his wife who was able to remember that he had told her of his car slipping on the highway in the general vicinity of the collision on the morning of the day of the accident, before the new snow had begun to fall. He also examined weather records and reports for November and December of 1957 in an unsuccessful attempt to recollect the exact time of the snowfall in the Hill City area which preceded the storm on the day of the accident. However, he was certain there had been an earlier snowfall and he recalled that a few hours before the accident his car had skidded on some packed snow or ice about one-half mile north of the scene of the accident. In his post-trial affidavit, the sheriff stated that he never knew whether or not there was packed snow and ice at the place of the collision and had not meant to testify that such a condition existed south of the place where his car had skidded. He does not say, however, that there was no packed snow or ice on the highway in the vicinity of the collision, and the plaintiff made no showing that upon retrial there would be evidence that the icy condition did not exist.
The testimony of the sheriff, which he thought was wrong and misleading to the jury, pertained to physical facts which could have been ascertained by the plaintiff before the trial. Certainly it would not have been difficult to ascertain that there were trees on only one side of the road and there was no showing that a new trial would produce evidence that there was no packed snow or ice on the highway at the scene of the accident when the new snow fell. Having lost the case, plaintiff now wants another opportunity to investigate, with no showing as to what the result would be.
It appears that the condition of the road was such that under Kansas law an instruction on unavoidable accident was proper and should have been given even without the sheriff’s testimony as to the trees and underlying snow. The driver of a motor vehicle is not liable for harm resulting when, without negligence, he loses control of his vehicle on a slippery roadway. “The mere skidding of a vehicle does not of itself constitute negligence as a matter of law unless it results from the driver’s negligence.” DeGraw v. Kansas City & Leavenworth Transp. Co., 170 Kan. 713, 228 P.2d 527, 531. An unavoidable accident implies that the accident was caused by some unforeseen and unavoidable event over which neither party had control. Carlburg v. Wesley Hospital and Nurse Training School, 182 Kan. 634, 323 P.2d 638; Knox v. Barnard, 181 Kan. 943, 317 P.2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P.2d 459. Many accidents would not occur except for the negligence of the defendant or the plaintiff, or both of them. In such cases there is no issue of unavoidable accident, but if there is evidence from which a jury could reasonably conclude that there was neither negligence nor contributory negligence, a jury question is presented and an instruction on unavoidable accident is appropriate. Kreh *583v. Trinkle, 185 Kan. 329, 343 P.2d 213. Without any evidence of underlying packed snow and ice, a jury might well have found that defendant’s car went out of control due to conditions caused by the storm and not from the defendant’s negligence.
Motions for new trial, on the ground that witnesses have made post-trial statements contrary to their testimony or have recanted their evidence after trial, are in the nature of those based upon newly discovered evidence. Such motions are not ordinarily granted unless a trial judge believes that the new or different evidence would, in all probability, change the result of the trial. Heald v. United States, 10 Cir., 175 F.2d 878, certiorari denied 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526; King v. Consolidated Products Co., 159 Kan. 608, 157 P.2d 541, 158 A.L.R. 1248, Annotation 1253; Taylor v. Ross, 150 Ohio St. 448, 83 N.E.2d 222, 10 A.L.R.2d 377; 39 Am.Jur., New Trial, § 169. In the King case, the court said [159 Kan. 608, 157 P.2d 544] :
“Assuming the testimony of Fisher might have greater weight than the testimony adduced by appellant it nevertheless remained in the sound discretion of the trial court to determine whether a new trial probably would produce a different result. Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P.2d 1. The mere fact this court might believe the case was one where with propriety a new trial might have been granted would not justify disturbing the conclusion reached by the trial court. Pittman & Harrison Co. v. Hayes, 98 Kan. 273, 278, 157 P. 1193.
“When an affidavit of a newly discovered witness is presented in support of a motion for a new trial the trial court in a very real sense makes a finding of fact upon the question whether the evidence, if introduced, probably would result in a changed verdict. Judges might, and sometimes do, differ with respect to such a finding of fact. The finding of a trial court upon that question, however, is conclusive, and will not be disturbed except where there is a clear abuse of discretion. State v. Stach, 116 Kan. 187, 226 P. 238; Ferguson v. Stewart, 121 Kan. 749, 753, 250 P. 292.”
I am satisfied that there was no clear abuse of discretion in denying the motion. I am also satisfied that there was no miscarriage of justice and that upon retrial, the question of whether there was old snow and ice on the highway, which is not a critical issue in the case, will be relitigated, possibly with the same result as in the former trial.
. It is doubtful if trees in Kansas would afford sufficient shelter or shade at Christmas time to prevent normal melting of snow on a road.