Edward Meyer, Appellant, v. Employers Liability Assurance Corporation, Appellee, 331 F.2d 304 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 331 F.2d 304 (5th Cir. 1964) April 28, 1964

Elliott Ross Buckley, New Orleans, La., for appellant.

Robert E. Leake, Jr., of Hammett, Leake & Hammett, New Orleans, La., for appellee.

Before CAMERON and BELL, Circuit Judges, and INGRAHAM, District Judge.

PER CURIAM:


Having lost his case to a jury, and after denial of his motion for new trial, appellant is here seeking reversal on two contentions of error. The matter involved is a negligence action seeking damages for injuries sustained when appellant slipped down on vegetable matter in the aisle of a supermarket where he was a customer.

The first error asserted rests on the jury charge in two particulars. Both are without merit. Cf. Powell v. L. Feibleman & Co., La.App., 1939, 187 So. 130; Peters v. Great Atlantic & Pacific Tea Co., La.App., 1954, 72 So. 2d 562; and Knight v. Travelers Insurance Company, La.App., 1947, 32 So. 2d 508. These cases are ample authority for those portions of the charge of which appellant complains when the charge is considered as a whole, and in the light of the facts adduced on the trial.

Neither is there any merit in the other contention; that the court erred in denying the motion for new trial based on newly discovered evidence. Without reaching any question of diligence, see Harris v. Whiteman, 5 Cir., 1954, 243 F.2d 563; it is clear that the alleged new evidence was merely cumulative. Chemical Delinting Co. v. Jackson, 5 Cir., 1951, 193 F.2d 123. There was no abuse of discretion.

Affirmed.

CAMERON, Circuit Judge, participated in the hearing of this case, but died before this opinion was written.