404 F2d 410 Southland Corporation v. Venere

404 F.2d 410

The SOUTHLAND CORPORATION d/b/a Seven Eleven Food Store, Appellant,
v.
John VENERE, Jr., and Gloria Venere, et al., Appellees.

No. 26217.

United States Court of Appeals Fifth Circuit.

December 2, 1968.

E. S. Corlett, III, Michael D. Sikes, Sherouse & Corlett, Miami, Fla., for appellant.

Merle S. Litman, Litman & Muchnick, Hollywood, Fla., for appellees.

Before TUTTLE and AINSWORTH, Circuit Judges, and MITCHELL, District Judge.

PER CURIAM:

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1

We conclude that in this diversity case the trial court committed no error in charging accurately, as it did, the theory of res ipsa loquitur.

2

The jury could have found that the appellant had such "exclusive control" of the trash container as would meet the requirements of the Florida law. No other facts, either proved or to be inferred, dealing with possible specific acts of negligence, made the charge inappropriate. The jury was not required to accept the theory that any specific act or failure to act was the direct cause of the injury.

3

The judgment is affirmed.