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trial court, and persisted in again asking said ques-
tions in the presence of the jury; 7. Counsel for
plaintiff made improper remarks in the presence of
the jury, which were prejudicial and considered largely
to the verdict in the case; and, lastly, that the court
erred in not granting a new trial because of newly
discovered evidence on the part of defendant.

Appellee testified that he and Henry Grubb were
working east of the place where the accident happened,
and that they had finished their work and were figur-
ing on going to Hoopeston for dinner ; that back about
a quarter of a mile east on the highway he was travel-
ing on the right side of the concrete and continued on
down towards the railroad crossing; that the concrete
pavement had two traffic lanes, and as he approached
the crossing he was traveling about thirty miles an
hour, and back about 200 feet from the crossing he
decreased his speed to about fifteen to twenty miles
an hour; that he observed two automobiles coining
from the west, one was a truck and the other was a
made-over car, looked like a Ford or Chevrolet; but
when he first saw them they were quite a ways west
of him and west of the railroad crossing; that he did
not know which car was in front when he first saw
them, that they were quite a ways apart, probably
a quarter of a mile or more, and as they approached
him they were coming closer together, and when he
was east of the railroad track, probably about sixty
feet, the front car passed him; from the time he first
saw it until it passed him it was on the south side
of the pavement, and at that time another truck was
coming towards him, and seemed to come in his direc-
tion, and that was the last he remembered; when the
first car passed him the other car followed closely be-
hind; it was on the south side of the pavement, and
it was coming towards the railroad crossing from the
west; that the car was on the south side of the pave-
ment and coming towards him at an angle headed



Page 6 Gen. No. 8853

northeast ; that he was driving in a Chevrolet ton and
a half truck, and that with the load that was in it, at
the time, it would weigh about two and a half tons ;
the condition of the highway where it crosses the
railroad was level, and the road was perfectly straight
for a mile or two, so far as he could tell; that the
speed of the other car at the time he saw it swerve
towards the east was around forty miles per hour;
when it swerved to the northeast it crashed into him,
and that is all he could remember; when he saw the
car coming there was a culvert where he was and he
couldn't get off the pavement, that there was no place
for him to get out of the way ; it was coming towards
him just as he started to hit the tracks ; that there was
a collision of the two trucks, and that his truck was
on the north side of the road right about the east
track; that it was several days after that before he
knew much.

Henry Grubb who was riding with appellee testified
that he was riding on his right and that there was just
one seat in the truck and that appellee was driving;
that it was about 11:30 o'clock, and the weather was
fair; we drove up as far as the railroad track when
the wreck occurred; for the last quarter of a mile, up
to and on the track we were on the north half of the
pavement, and did not at any time during that dis-
tance get over the center line of the pavement; dur-
ing the time that we travelled that last quarter of a
mile I looked towards the west side of the railroad on
the highway and saw two cars west of the railroad;
I don't remember the make of them, but they were
coming in our direction; they were on the south side
of the pavement, and when I first saw them they were
about a city block apart and about a quarter of a mile
west of the railroad ; as we approached, we practically
met at the railroad ; the car in front passed us, and as
we met at the railroad the other car swerved into us ;
the first car passed us about fifty feet east of the track
and the other car was about fifty feet west of the right
of way line of the railroad at that time ; I saw the first
car before it got across the railroad ; when the first car
was at the west railroad right of way the second car
was about 100 feet west of it; neither of these cars
passed around the other while I was looking, and there
were no other vehicles there at that time ; in my judg-
ment the second car was traveling at between 40 and 45
miles per hour ; the first car as it approached the rail-
road right of way seemed not to be going as fast ; after
we passed the first car we continued going on west;



Page 7 Gen. No. 8853

I know the place on the north side of the highway
where a man, named Brocker, used to live and with
reference to that house and the east track of the rail-
road we were passed by the car which went east about
fifty feet east of the railroad; the accident occurred
on the railroad right of way about the east track, and
when we got to the railroad this other truck all of a
sudden swerved towards us and pushed us over into
the ditch ; when we were hit we were on the north side
of the slab about where the tracks were ; I can remem-
ber when the truck hit us, it throwed me around inside
and my head hit the ceiling and knocked me out, and
I couldn 't say how long before I came to ; when I came
to I saw Mr. Fromm was laid out under a tree at the
comer of Mr. Brocker 's house ; I went up to him, and
then I began to remember something that had hap-
pened, and I called his residence ; then we waited for
a doctor, and Mr. Fromm laid there until the ambu-
lance came ; during the last quarter of a mile before
we got to the track we were going about 30 or 35 miles
per hour; from Mr. Brocker 's house on to the right
of way of the railroad we slowed down to about 20, and
when we got up to the tracks we were traveling about
the same speed, and during all of that time we staid on
the north side of the pavement.

Frank W. Eeyher testified on behalf of plaintiff, that
I know the location of the intersection of the Illinois
State Route No. 9 and the Chicago, Milwaukee & St.
Paul Railroad and made certain measurements at that
crossing and made a memorandum of them ; the pave-
ment is 16 feet in width, and it is the same width east
and west of the railroad; there were marks down the
center of the pavement east and west of the railroad ;
there was a tarvia surface which extended westward
about 30 feet from the west rail of the railroad track,
but there was no tarvia on the east of the railroad;
from the east rail to the edge of the slab was wood,
about a foot in width ; there was a culvert east of the
rail and north of the slab, and there was a cap which
was six inches high above the shoulder and nine inches
thick; I didn't observe any culvert on the south side.

0. E. Young, a witness on behalf of appellee, tes-
tified, I knew this highway and crossing and lived
eighty rods west of it ; on the 11th of July, 1931, I was
up to the crossing and saw Mr. Fromm, the plaintiff,
and Mr. Smock, the defendant ; I had known Mr. Smock
for about ten years ; Mr. Butsaw arrived about the time
I did, also Mort Brocker; Mr. Brocker is now dead;
when I got there Mr. Fromm was lying under a tree



Page 8 Gen. No. 8853

in the corner of Mr. Brocker's yard; his house is the
first house east of the crossing, on the north side; I
saw the trucks and, as I remember it, the paint truck
was headed to the northwest and was entirely off of
the slab with the exception of the right hind wheel,
and was toppled over onto its right side ; I know where
the little stone culvert is on the east side, and the paint
truck was lying pretty close to that culvert, I should
judge about five feet north of the slab ; the other truck
was at the side of the paint truck, it wasn't turned
over, it was headed northwest, and as I remember it
it was all on the north side of the center of the black
line, with the exception of the left rear wheel; I was
standing out in the yard at the time and happened to
be looking east and saw the two cars, and it looked
to me as if they had come together ; I did not hear the
crash ; I went up there ; the left hand side of the paint
truck was pretty badly jammed up ; I could not say
whether either of the cars had been moved when I came
up ; I came from the west up to the railroad, and when
I got there I parked on the south side of the slab and
got out of my car and walked up and went over to the
east side of the track and saw Frank Butsaw coming
from the east about the same time I came from the
west ; I did not see any cars beside the two referred to ;
and there was no obstruction from where I was to that
place; I saw the cattle truck there, and it had pneu-
matic tires. I saw tracks there in the asphalt pave-
ment on the west side of the tracks, and just after
those tracks hit that asphalt pavement they swayed to
the northeast, I should judge on an angle of about
45 degrees; I first noticed the tracks a little west of
this asphalt; they were going just a little northeast,
there was a change in the direction, the further east
they came the more northeast the tracks ran ; I did not
see but two automobile tracks; they were perfectly
plain in the asphalt ; I do not know how wide the tracks
were, but presume in the neighborhood of five inches ;
these tracks ended about the west rail of the east rail-
road tracks; they ended right near the rear wheel of
the cattle truck, and they went across the center line
of the pavement.

Frank Butsaw testified on behalf of appellee, I am a
farmer and am acquainted with Mr. Fromm but did
not know him before the accident occurred; I have
known Mr. Smock five or six years; I was at home
when the accident occurred, I live between a quarter
and a half mile east of the railroad crossing; I was
out in the barn lot, but did not hear anything ; some



Page 9 Gen, No. 8853

one called out that there was an accident, and I got
into a machine and drove down ; as I was going down
there I could see down the highway ; I know Mr. Young
who just testified, and saw him there and saw the
trucks standing there and they were on the north side
of the right of way of the pavement; one truck had
left the hard road, and the other one was partly set-
ting on it ; it was Mr. Fromm 's truck that had left the
hardroad, and it was turned over on its side and
headed northwest; the other truck was a cattle truck,
and it was turned at an angle to the northwest and was
north of the center line of the highway; the rear ends
of the two trucks were about parallel with each other ;
I observed marks around there right west of the west
rail; there is about 25 or 30 feet of asphalt and you
could see the impression of the tires very plainly, the
impression began right at the west edge of the asphalt ;
west of that was cement; they came straight on the
asphalt about 10 feet and then turned north; from
there they went at an angle to the northeast and ended
about 4 feet north of the center of the pavement ; they
were marks from the tread of the tires, about four or
five inches in width and plainly visible ; the paint
truck was jammed in on the left side and the motor
driven back into it and the left door was wrecked.

Harry Clement testified on behalf of appellant, I
live at Hoopeston and was at the scene of the accident
shortly after it occurred; I saw Smock's truck sitting
there, and the front wheels were four or five feet on
the north side of the pavement and the back wheels
were on the south side of the black line, especially the
right back wheel ; I saw some marks on the asphalt ap-
proach to the west track ; they were black marks made
by the tires, and they turned northeast about three
foot of the boards west on the wooden approach on
the west side of the track; these tracks were on the
south side of the black line before they began to turn ;
and the north track, I judge, was a foot and a half
south of the center line before it began to turn; the
paint truck was headed practically parallel to the east
rail and the rear was lying on the wooden approach ;
Smock's truck stood on the wooden approach, and was
damaged in the left front part ; the wheel and fender
were smashed ; it seems to me like the paint truck was
all smashed in.

Nettie Sites testified that she lived two miles north-
east of Eankin, and that she was a graduate nurse and
was in attendance upon the plaintiff, and thinks she
went on duty in September; and that very little was



Page 10 Gen. No. 8853

said about the accident by him (meaning appellee) ; he
did tell me he did not know how it happened, he
thought there was a third truck involved, but she did
not know whether he remembered anything for about
two months.

Geraldine Smock testified that she lives in Rossville
and was a daughter of the appellant and knew Mr.
Fromm and saw him at Lake View hospital, and that
her sister was with her and talked with him; he told
me he did not have any knowledge about how the acci-
dent happened, that he did not blame my father; this
was in August after the accident, and he talked as if
he was in his right mind; I went there for the pur-
pose of finding out what he knew about the accident;
I learned yesterday that his memory was blank for a
month, I was in there probably for about five minutes.

Bernice Smock-Harris testified that she was a
daughter of appellant and lived at East Lynn, and was
with her sister at Lake View hospital when we went
up to see Mr. Fromm; that Mr. Fromm told us that
he did not blame my father; he said he did not know
how it all happened, it happened so quickly.

Guy Smock, appellant, testified, I am fifty years
old and lived on a farm for 20 years ; I was driving
a truck at the time of the accident, which happened
about 11 :00 o 'clock, was going east on the Blooming-
ton highway; the crossing is level and there is about
a 30 foot break in the cement on the west side of the
tracks which was filled with asphalt ; as I approached
the crossing I was alone in my car, and I have an
idea I saw this paint truck coming from the east quite
a ways, I should judge a quarter of a mile, and I drove
around 30 to 35 miles an hour when I first saw the
truck coming; I suppose I slacked up for the rail-
road — most generally do, and as I approached the
asphalt filler was going about 30 miles an hour; be-
fore I got to the asphalt filler and before I met the
other truck there was a vehicle pulled on my left side
from the north and came in ahead of me; there wasn't
any car immediately ahead of me, going the same di-
rection, before I got to the asphalt filler; I was right
up to the asphalt when this car came from behind;
I was on the south side of the black or center line;
the other car was between me and the paint truck
right before the accident just before the paint truck
and my car collided, I don't know what happened to
this third car; before this other truck got in between
me and the paint truck the paint truck was on the
north side; I did not see it on the south side; just as



Pa g e 11 Gen. No. 8853

the two cars came together I was on the south side
and the paint truck was on the north side; my car
was headed east when the two cars collided, and the
paint truck was going west; they collided just over
the west rail; I don't think there was much room be-
tween me and the paint truck when the other car
turned in between because after he hit me I did not
know yet I hit the paint truck ; I was rendered uncon-
scious, and was not able to remember the location of
the truck after the accident until I went back there;
immediately after the accident I was taken to a doc-
tor's office in Hoopeston; when I was a distance of
50 feet west of the railroad crossing I was not driv-
ing at a rate of speed greater than 40 or 45 miles an
hour ; I did not see the car that went around me before
it went around, and don't suppose I looked back to
see if any car was following me since I left the Dixie
highway; the tar pavement is something like 30 feet
wide until it gets to the planking; I never noticed
where the tar began; I saw marks afterwards that my
car made, could not tell which wheels of my car made
the marks, and remember the marks were plain in the
tar ; they went east a little and veered off to the left
or northeast and got on the boards, and I noticed that
the tar was carried onto the boards; the cars came
together on the east two rails ; was traveling 30 to 35
miles an hour when I reached the left side of this tar ;
I don't remember saying I was driving pretty fast,
about 15 or 20 minutes after this crash, in the presence
of Mr. Young and Frank Butsaw and Mr. Brocker;
when the other car went around me I was right there
on the asphalt; he went around me right on the two
west tracks, and I was on the side road ; I went back
and saw my track — what they told me was my track ;
they ran right up to where my truck was, and don't
know how far back the track started on the cement
west of the asphalt ; it might have been three or four
feet on the cement ; I remember putting my brakes on.

Appellee, upon being recalled, testified 'that he said
to Nettie Sites that I did not blame her father. In
the first part of September I told her I did not know
just how the accident happened and did not at that
time know; Mr. Smock talked to me in the hospital,
and I told him I did not know how it happened; I
further told him I knew there was a third car but did
not know how or what it had to do with the accident.

A careful consideration of the evidence leads us
to believe that the verdict of the jury is not contrary
to the manifest weight of the evidence. It is claimed



Page 12 Gen. No. 8853

that there was another ear besides the truck of appel-
lant approaching from the west and that it passed his
truck, but from the evidence the jury were warranted
in believing that no car passed the truck of appellant
after it was any where near the crossing. At the time
the car in front passed appellee's car it was fifty or
sixty feet east of the crossing and the truck of appel-
lant was west of the crossing at that time. The truck
of appellee was at all times on the right hand side of
the center line of the highway and just before the
collision the truck of appellant swerved over to the
left and was headed in a northeasterly direction, as
appears from the uncontradicted testimony in the case
as to the marks made by the tires in the tarvia after
appellant applied his brakes, as he says he did; and
it is fair to presume that the cause was the checking
of the speed of the truck by the application of the
brakes. So far as appears from the evidence appellee
was guilty of no contributory negligence.

One of the errors relied upon for a reversal of the
judgment as stated by appellant in his brief is that
the court refused to exclude improper evidence offered
by appellee and also that the verdict of the jury was
based upon passion, prejudice and sympathy, yet such
evidence which is claimed to have been improperly
excluded is not pointed out by appellant in his brief
and argument, neither was it mentioned that the ver-
dict was based upon passion, prejudice and sympathy,
and it is evident that appellant did not wish to press
these grounds for a reversal of the judgment. Apel-
lee was confined in the hospital for a long time, and
part of the time not fully conscious, and was severely
injured and the verdict of the jury is not excessive,
and from anything that appears in the evidence we
fail to discover that the verdict was based upon either
passion, prejudice or sympathy and we find that the
jury were justified in finding for the plaintiff.

It is true that counsel for plaintiff persisted in ask-
ing certain questions after the court had ruled such
questions improper. Such conduct in an attorney can-
not be too severely condemned. However, in view of
the evidence we do not feel justified in remanding the
case on account of such misconduct on the part of coun-
sel for appellee.

It is also urged that the court erred in not granting
appellant a new trial because of newly discovered evi-
dence on the part of the defendant. The court did not
err in overruling said motion. Applications for a new
trial on the ground of newly discovered evidence are



Page 13 Gen, No. 8853

not looked upon with favor and are subjected to close
scrutiny. The burden is on the applicant to rebut the
presumption that the verdice is correct and to show that
there has been no lack of diligence. "The evidence
must fulfil the following requirements : First, it must
appear to be of such conclusive character that it will
probably change the result if a new trial is granted;
second, it must have been discovered since the trial;
third, it must be such as could not have been discovered
before the trial by the exercise of due diligence;
fourth, it must be material to the issue; and fifth, it
must not be merely cumulative to the evidence offered
on the trial." People v. Dabney, 315 111. 320; People v.
Johnson, 298 111. 53. The newly discovered evidence
must be positive and conclusive and capable of defi-
nitely settling the controversy. King v. Swanson, 216
111. App. 294.

This newly discovered evidence is merely cumulative
and not conclusive. Lewis states in his affidavit that
he was walking south on the railroad and when he was
within 200 yards of where State Highway No. 9 crosses
the tracks he saw an automobile accident ; that he saw
a small car pass a stock truck on the left hand side
and apparently strike the left front wheel or the front
end of the truck causing him to lose control of the car.
The only positive statement made by Lewis was that
he saw an automobile accident and saw a small car pass
the stock truck on the left hand side, the balance of his
statement being mere conclusions of the affiant.

The rule has been followed in this state not to re-
verse on the grounds of newly discovered evidence un-
less diligence has been shown by both the attorney and
client with reference to presenting the matter at the
time of the first trial. People v. Blanch, 309 111. 426.

Furthermore, according to the statemen of Lewis he
was present at the place of the accident and saw a num-
ber of persons and later learned that the truck was
driven by Guy Smock of Kossville, Illinois. The evi-
dence must have been discovered since the trial, and
when it consists of evidence of a person who was pres-
ent at the time the accident or controversy occurred, it
must be shown that such fact could not have been as-
certained by reasonable inquiry and the exercise of
due diligence. Graham v. Hagmann, 270 111. 252. The
only showing made that the fact that Lewis was present
at the scene of the accident could not have been ascer-
tained by the exercise of reasonable diligence was by
affidavit filed in support of the motion for a new trial



Page 14 Gen, No. 8853

on the ground of newly discovered evidence by Melvin
E. Harwood who says under oath that he is the agent
of Guy Smock, but no showing is made by the defendant
or his attorneys and no showing is made by appellant
that Harwood was authorized by him to make investi-
gation as to who was present at such accident and as-
certain what such person knew about it. Lewis was in
the State of Kentucky at the time of the making of the
affidavit, and no assurance was given that he would be
present at another trial except the belief of the attor-
neys for appellant.

Appellant insists that the court erred in refusing to
give to the jury the second instruction requested by him
which reads as follows : ' ' The court instructs the jury
that by his declaration in this case the plaintiff charges
that the defendant was negligent in the operation of
his truck in that it suddenly did turn to the left and
upon the northerly half and side of the traveled por-
tion of the public highway and into collision with the
truck operated by the plaintiff.

In order to recover in this case it is incumbent upon
the plaintiff to prove the said charge by a preponder-
ance of the evidence in this case and if you find that he
has failed to so prove the said charge in his declaration
then your verdict should be for the defendant. ' '

Counsel for appellant contends that every count in
plaintiff's declaration charges that the defendant
turned his truck to the right and caused the injury to
the plaintiff, through carelessness and negligence of
the defendant, and that it is necessary for the plaintiff
to prove the specific acts of negligence alleged, before
he can recover, and that it is not sufficient for him to



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