Mr. Justice Terry concurred.

The grounds relied on in the Court below for a new trial, were, first, surprise; second, newly discovered evidence; third, misconduct of the jury; and, fourth, excessive damages.

On the trial, one Rossiter was called as a witness for the plaintiff. On his cross-examination, he was asked if he had not, on a former occa^ sion, stated to one Benton that the accident was not caused by the fault of the driver, and if the plaintiff had not had his leg on the outside of the coach at the time it was upset, he would not have been injured; to which he answered, he had not.

The appellants allege they were taken by surprise by the answer of the witness, having been led to believe that his testimony would be di*230rectly the reverse. If Rossiter had been called by the defendants, and it had appeared on the trial that he had misled them by statements of what his evidence would be, and the defendants relying on such representations, had not prepared themselves with other testimony, it might have been a proper ease for the interference of the Court. But under the circumstances in which the witness presented himself, it was the duty of the appellants to be prepared for their defence.

It is not very material by whom he was called in this case, as the record shows that there was a conflict of testimony upon this point, and the jury might with propriety have found either way.

This view disposes of the second ground for new trial, viz.: newly discovered evidence, as the same matter was in controversy on the trial, and there was a conflict of evidence, particularly between the driver and the witness named. The testimony of Benton, as to what the witness had said, would have been merely cumulative, and therefore not a sufficient ground for new trial.

The conduct of the jury was not of a character to vitiate the verdict ; it arose from ignorance or loquaciousness, and is not tainted with corruption, fraud, or willful misconduct; besides which, it is fully sustained by his own affidavit in support thereof.

The fourth ground, excessive damages, is not supported by .the record, the whole question was submitted to the jury, and the amount assessed was not so outrageous as to shock the conscience of the Court, who tried the cause, or raise the presumption of passion or prejudice. Neither does it appear to us, that there was any abuse of discretion in permitting it to stand.

Judgment affirmed.