Peter Goldberg v. United States

Second Circuit

Peter Goldberg v. United States

337 F.2d 404, 1964 U.S. App. LEXIS 4211

CourtCourt of Appeals for the Second Circuit

DecidedOctober 7, 1964

Docket27830_1

StatusPublished

This text of 337 F.2d 404 (Peter Goldberg v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Peter Goldberg v. United States, 337 F.2d 404, 1964 U.S. App. LEXIS 4211 (2d Cir. 1964).

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Opinion

PER CURIAM.

This is a civil non-jury case for damages claimed to have resulted from defendant’s negligence. In open court plaintiff withdrew any claim for malpractice, leaving only the claim that plaintiff’s injuries were caused by a fall from a defective wheel chair provided by defendant. The record amply supports the trial court’s finding that the X-rays clearly establish that the slipping of the Smith-Peterson nail took place before plaintiff’s alleged fall and that the alleged fall was not the proximate cause of the injuries which plaintiff claimed to have .suffered.

The motion to strike defendant’s answer made on the day of trial was prop■erly denied. No request was made to take the testimony of the operating surgeon, Dr. Jackson, or for an adjournment ■ of the trial.

Subsequent to trial, plaintiff moved to .set aside the judgment or, in the alternative, for a new trial. Rule 59, F.R.Civ.P. Plaintiff failed to show any prejudice caused by the absence of the operating surgeon. He had voluntarily withdrawn his claim for malpractice and had the testimony of his own medical expert both as to operative procedures and the X-rays.

Judgment affirmed.

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PER CURIAM.

This is a civil non-jury case for damages claimed to have resulted from defendant’s negligence. In open court plaintiff withdrew any claim for malpractice, leaving only the claim that plaintiff’s injuries were caused by a fall from a defective wheel chair provided by defendant. The record amply supports the trial court’s finding that the X-rays clearly establish that the slipping of the Smith-Peterson nail took place before plaintiff’s alleged fall and that the alleged fall was not the proximate cause of the injuries which plaintiff claimed to have .suffered.

The motion to strike defendant’s answer made on the day of trial was prop■erly denied. No request was made to take the testimony of the operating surgeon, Dr. Jackson, or for an adjournment ■ of the trial.

Subsequent to trial, plaintiff moved to .set aside the judgment or, in the alternative, for a new trial. Rule 59, F.R.Civ.P. Plaintiff failed to show any prejudice caused by the absence of the operating surgeon. He had voluntarily withdrawn his claim for malpractice and had the testimony of his own medical expert both as to operative procedures and the X-rays.

Judgment affirmed.

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337 F.2d 404, 1964 U.S. App. LEXIS 4211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peter-goldberg-v-united-states-ca2-1964.

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