decided: June 22, 1959.
MARGIT E. KOLAN, PLAINTIFF-APPELLANT,
GEORGE CSENGERI, DEFENDANT-APPELLEE.
Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and EDELSTEIN, District Judge.
Plaintiff-appellant, a guest passenger in defendant's automobile, suffered injuries when the car being operated by defendant went off the road and struck a tree. She brought action against her host alleging that his negligence caused her injuries. Trial was had by jury. A defendant's verdict was returned which plaintiff moved to set aside on the usual grounds. The motion was denied, and plaintiff appeals from this ruling. It is clear that the motion was without merit. There were conflicts between the plaintiff's and the defendant's stories of how the accident happened, these issues of fact were properly for jury consideration, and the charge, to which no exceptions were taken, was adequate.
There was trial evidence tending to show that defendant's car went into an uncontrollable skid which could have been caused by the presence of ice on the road surface. The day after the accident defendant prepared and promptly filed with the State the "Report of Motor Vehicle Accident" required by New York. On it he noted that the road surface was icy. This Report was offered in evidence by appellant, who also offered evidence, including a weather report, tending to show that the road was neither slippery nor icy.
After denial of her motion to set aside the verdict plaintiff then moved for a new trial on the ground that she was surprised by the evidence relative to the claim that the accident was caused by an icy road surface, and that she had discovered new evidence bearing on this issue. From the denial of these motions, one timely made under Fed.R.Civ.P. 59 and one made later under Fed.R.Civ.P. 60, plaintiff also appeals. In view of the evidence on this point introduced by her at the trial, we find no merit in her claims of surprise. Moreover, as pointed out by the trial judge, the newly discovered evidence is merely cumulative.
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