#### Ernst Heldmaier v. Lily Taman.

Opinion filed December 20, 1900.

New trial — when motion for new trial is properly denied. A motion for new trial on the ground of newly discovered evidence is properly denied where the affidavit fails to show that due diligence was used to procure the evidence at the trial, and the alleged evidence, in its material parts, is merely cumulative.

Heldmaier v. Taman, 88 Ill. App. 209, affirmed.

Appeal from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.

George W. Plummer, and Wharton Plummer, for appellant.

King & Gross, (Andrew J. Hirschl, of counsel,) for appellee.

*284Mr. Justice Carter

delivered the opinion of the court:

The appellee, a child four years old, suing by her next friend, recovered a judgment against appellant, in the circuit court of Cook county, for a personal injury. While upon the street she was struck and injured by a wagon loaded with stone, drawn by a team in charge of appellant’s servant. The jury assessed the plaintiff’s damages at $2500. Upon a remittitur of $1500 judgment was rendered for $1000, which judgment, upon the defendant’s appeal, the Appellate Court affirmed.

Upon this bis further appeal appellant contends that upon the whole evidence, which is fully reviewed by counsel, the verdict should have been for the defendant, and that the court erred in not instructing the jury to so find. It needs only to be said that the evidence tends to establish the allegations of the declaration and is sufficient to support the judgment. The crédibility of witnesses and the weight of the evidence were questions finally disposed of in the Appellate Court.

It is next insisted that a new trial should have been granted upon the showing made of newly discovered evidence. The affidavits setting forth this evidence failed to show that due diligence had been used to ascertain the alleged newly discovered facts. It is not sufficient to state merely that due diligence has been used, but the facts constituting diligence must be stated. Then, again, the newly discovered evidence, in its material parts, was merely cumulative. No error was committed in overruling the motion on this point.

It is next contended that the damages recovered are excessive. The Appellate Court held otherwise, and its judgment is conclusive upon that question also. \

No error which we can consider appearing, the judgment will be affirmed. , . „

r , . „ 7 Judgment affirmed.