when the stair railings were installed; guessed it was more than six months later; that they were put in later, of course, but witness did not know exactly when.

It is the contention of plaintiff that the testimony as a whole, particularly emphasized by that taken before the commissioner after the trial, shows that defendant and his witnesses not only testified falsely as to when and by whom the rails were installed, but made a studied attempt to mislead and conceal facts which might help towards ascertaining the truth. In his reasons for denying the motion for a new trial the learned circuit judge, referring to the answer made by the jury to the special question, said:

"The claim that this testimony is false is based mainly upon further testimony relative thereto taken before a circuit court commissioner. I do not find, however, from this testimony that there is any material change in that which was given upon the trial; and the arguments which were submitted to the court, with inferences of counsel therefrom, were the same as those submitted to the jury at the time of the trial. The jury manifestly believed the testimony that was presented. They had full opportunity with the court to note the appearance of the witnesses on the stand, and were given an opportunity to personally examine the railing in question by a visit to the premises had during the trial by consent of both parties. I see no reason why the finding of fact made by the jury in this regard should be set aside."

It can safely be said that, in the absence of the depositions subsequently taken before a commissioner, the motion for a new trial would not call for serious consideration. These depositions which are chiefly relied upon by counsel in urging the second assignment of error are to be considered in like manner as is newly discovered evidence presented by affidavits in support of a motion for a new trial,

It is recognized as a general rule that a motion for a new trial upon that ground is not regarded with favor, and, to prevail, it must appear to the satisfaction of the

court that the evidence itself, and not its materiality, is newly discovered; that the party could not with reasonable diligence have discovered and produced it at the trial; that it is not cumulative merely, unless it be so strong and convincing as to render a different result probable; and that such result is in fact probable and the legitimate, logical effect of such evidence would be on a retrial to reverse the former verdict.

Whether the newly discovered evidence is of such a character and a different conclusion ought to follow, or is probable on a retrial is a question primarily and peculiarly addressed to the good judgment and discretion of the trial judge who heard and saw the witnesses, and is familiar with the visual conditions of the case. That discretion will not, as a rule, be disturbed except in case of manifest abuse.

It is further to be observed that the depositions, as well as the special question complained of, relate only to the time when the handrails were put in the stairway, and do not touch the issue of whether the stairway was properly lighted, or in any way attack the testimony of defendant's witnesses on that question. The issue as to the presence of rails was not necessarily a controlling one. The question of plaintiff's contributory negligence was involved, and it was also a question for the jury whether or not failure to supply handrails was negligence under the circumstances shown in this particular case. If the stairway was broad, with easy steps and well lighted, it could with reason be contended that the absence of handrails was not. Plaintiff, according to her own testimony, was alone, departing at her leisure, with abundance of time, undisturbed by any rush or crowd, and fell, not because there was no railing, but because it was dark. She says:

* * *

"It was dark in the theater when I started to leave and I felt my way down the first flight of three steps, did not know about the curved step, and, being unable to

see it, I walked right off and was thrown down the flight of eight steps to the first landing."

The inference from her testimony is that if the place had been plainly lighted, so that she was able to see clearly, she would not have fallen. Against her testimony that the stairway was dark, the defense opposed the testimony of numerous witnesses that it was well lighted. If the jury believed defendant's testimony as to the lights, they could legally find that defendant had discharged his duty to plaintiff regardless of the presence of handrails. We find no error in the decision of the trial court denying plaintiff's motion for a new trial.

The judgment is affirmed.

MOORE, C. J., and MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

RICE v. CITY OF PONTIAC.

1. MUNICIPAL CORPORATIONS- SIDEWALKS - BOND-CONTRACTSTRIAL-CHARGE.

Instructions to the jury that plaintiff, suing to recover under a city ordinance which rendered the city liable for half the cost of cement walks built by the city contractor, was entitled to recover as assignee of the property owners if the jury found that he had filed his bond as required by municipal regulation, and had been advised by one of the commissioners that the bond was good, although it was later rejected by the commissioners, and if the walk conformed to the requirements of the ordinance, held to be sufficiently favorable to defendant.

2. SAME-NEW TRIAL.

Held, that the refusal to grant a new trial was sufficiently supported by conflicting evidence.

Error to Oakland; Smith, J. Submitted October 15, 1912. (Docket No. 86.) Decided November 8, 1912.

Assumpsit by John W. Rice against the city of Pontiac for labor and materials. Judgment for plaintiff. Defendant brings error.

Affirmed.

Peter B. Bromley, for appellant.
Pelton & McGee, for appellee.

MOORE, C. J. The plaintiff as assignee of certain property owners, along whose property the city had ordered cement sidewalks built, recovered a judgment for $189.50, being 4 cents per square foot of the total cost of the walks. The case is brought here by writ of error.

It is insisted the city is not liable (1) because the plaintiff was not a licensed sidewalk builder for the year commencing May 1, 1911, and had not filed and had approved his bond as a sidewalk builder for that year; (2) because, under the ordinance under which the plaintiff claims to recover, the city did not undertake or agree to pay the plaintiff either personally or as assignee, but only property owners along the street upon which the sidewalk was laid. It is also said the court erred in his refusal to set aside the verdict and grant a new trial for the reason that the verdict of the jury on the question as to whether the sidewalks charged for by the plaintiff were defective walks, and were not built in compliance with the ordinance of the city of Pontiac, and the specifications in reference to building of cement sidewalks was against the clear weight of the evidence in the case upon such question. In May, 1900, the following resolution was passed by the common council:

"That hereafter all contractors building cement walks for or in behalf of the city or any walk for which the city pays expenses for any portion of the cost thereof shall file a good and sufficient bond to the city of Pontiac in the sum of five hundred dollars, guaranteeing the walks for a period of five years."

The ordinances germane to the issue presented which were in force at the time the walk was built are as follows:

"Section 1. Hereafter when a sidewalk has been ordered built by the common council of the city of Pontiac in said city and has been built by the same person or persons who have been contracted with to build walks for said city, if the same has been built and laid of flag stone or cement and as good as the best that is now laid on Saginaw street in said city, the said city will pay to the owners of the property along which said sidewalk has been so laid one-half of the actual value thereof not exceeding four and one-eighth cents per square foot.

"Section 2. On the completion of the said sidewalk the person entitled to said sum shall present his or her claim to the council in the same manner as is provided for the presentation of other claims and the council shall audit and allow the same, but it shall be a complete defense to said claim if it shall appear to the council that the said walk or the material used therein is defective or is not built in a substantial and workmanlike manner."

Pontiac now has the commission form of government. The records of the city show the following:

"PONTIAC, MICH., August 1, 1911. "To the Honorable Commissioners of the City of Pontiac, Mich.

"Gentlemen:

"We, the undersigned, property owners and taxpayers, liable to assessment, do hereby most earnestly petition your honorable body for the construction of a sidewalk on Paddock from Raeburn to Prospect and on Prospect from Paddock to Saginaw North Side, and your petitioners will ever pray. C. McClelland, F. Burke, Ernest Radson, Ross & Slater Construction Co.; Prospect, Ray W. Long; Prospect, V. Wells; Church, Gates Bros.

"By Commissioner Osmun: Resolved, that the petition be received and the prayer granted."

The city engineer established the grade of the walk. Before its construction was commenced, and some time in August, the plaintiff filed his bond in due form with sureties, with the city clerk. He testified that, before he built the walk, he was informed by Commissioner Osmun