Fairhaven Mining Co. v. Immachuck Dredging Co.

Citations

• 5 Alaska 462

Syllabus

<p>1. Evidence ©=>586(3,4)—Affirmative Better Than Negative.</p> <p>Affirmative evidence is better than negative. Where the fact in issue is what was actually done by the witness, the reason for applying the rule is stronger than if the issue was merely . what was seen or heard; for to remember what one does is easier than to remember what one has seen or heard. What one has done is in the very nature of things impressed more in- . delibly on the doer’s mind. Where there are a greater number of witnesses who testify that the work in question was not done as against those testifying that it was done, the testimony of the former is wholly negative in character and unreliable, and cannot prevail against the latter.</p> <p>2. New Trial ©=>95—Surprise.</p> <p>On a motion for a new trial, on account of surprise, the courts interfere with verdicts on the ground of surprise with great reluctance. If the surprise was owing to the least want of diligence of the applicant, the motion will be denied.</p> <p>3. New Trial ©=>99—Newly Discovered Evidence.</p> <p>The rule is that a court will not be justified in setting aside a verdict and granting a new trial on the ground of newly discovered evidence, except the following requirements be fulfilled: (1) It must be such as will probably change the result. (2) It must have been discovered since the trial. (3) It must be such as could not have been discovered before the trial by due diligence. (4) It must be material to the issue; it must not be merely impeaching, or contradicting the former evidence, or merely cumulative.</p> <p>@s»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>