Land Damages — New Trial — Photograph. At the trial of a petition for an assessment of the damages caused by taking land near the junction of two streets in a city, the evidence was conflicting as to whether or not the streets were on the same level at such junction. After verdict, the petitioner moved for a new trial, on the ground of newly discovered evidence, and filed with the motion a photograph showing the grades of the locality in question, accompanied by affidavits of the photographer and a civil engineer, stating that the photograph was a correct representation of the locality, and that the grades were on the same level; also other affidavits, stating that the buildings on the petitioner's land had been removed before the time when an expert witness for the respondent testified at the trial that he was inside of them. The judge found that the photograph was discovered after the trial, and that the expert witness was mistaken in his testimony as to when he saw the buildings; and denied the motion. Held, that it did not appear that the judge exceeded his powers in refusing a new trial.
HOLMES, C.J.
It does not appear that the judge exceeded his powers in refusing a new trial, whether he went on the ground that the newly discovered evidence was only cumulative, or on the ground of its relative importance, or rather unimportance, upon a general view of his whole case. He also may have found that the photograph would be uninstructive and misleading. See Behan v. Williams, 123 Mass. 366.
Exceptions overruled with double costs.