266 F2d 1 Masterson v. New York Central Railroad Company
266 F.2d 1
Joseph D. MASTERSON, Plaintiff-Appellant,
NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.
United States Court of Appeals Third Circuit.
Argued April 10, 1959.
Decided May 5, 1959.
Samuel T. Gaines, Cleveland, Ohio (Fred B. Sieber, Erie, Pa., on the brief), for plaintiff-appellant.
William F. Illig, Erie, Pa. (Gifford, Graham, MacDonald & Illig, Irving Murphy, Erie, Pa., on the brief), for defendant-appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
The only important question on this appeal is whether the request to charge res ipsa loquitur should have been granted.
Our own examination of the record completely satisfies us that Judge Willson correctly held in his opinion on the motion for a new trial that "The request for charge was refused because inconsistent with the allegations in the Complaint as well as inconsistent with the position taken by plaintiff and his experienced and able counsel throughout the trial and finally because not warranted by the evidence introduced during the trial." [169 F.Supp. 436.]
The judgment of the district court will be affirmed.