
    McKINNEY v. ATLANTIC CITY R. CO.
    (Circuit Court, E. D. Pennsylvania.
    June 12, 1905.)
    No. 51.
    Granting a New Trial.
    Samuel A. Boyle and Rothermel & Clement, for plaintiff.
    Gavin W. Hart, for defendant.
   HOLLAND, District Judge.

The fifth reason for a new trial, among others, is as follows: “The learned court erred in declining to charge as requested by defendant in its first point, to wit: ‘There is no evidence that the train that caused the accident was the property of or in control of defendant or its servants, and your verdict must be for the defendant.’ ” Upon a review of the evidence, I find no proof at all on this point; nor is there any evidence to show that the railroad upon which this accident occurred is under the defendant’s management. As defendant’s counsel insists that proof of these facts is material in this case, a new trial should be granted; and it is so ordered.  