
    BOIAKOSKY v. PHILADELPHIA & R. RY. CO.
    (Circuit Court, E. D. Pennsylvania.
    December 5, 1903.)
    No. 46.
    1. Nonsuit — Failure to Prove — Surprise—New Trial.
    Where, in an action for injuries in the operation of a street railway, plaintiff was nonsuited for failure to prove that defendant controlled or operated the railway, a hew trial will not be granted on the ground that plaintiff’s counsel was surprised by the defense of defendant’s want of control, on a statement of plaintiff’s counsel only that he believed he would be able to produce such evidence on a new trial, as against the positive assertion of defendant’s counsel that no such evidence existed.
    S. M. Israeli, for plaintiff.
    Gavin W. Hart, for defendant.
   J. B. McPHERSON, District Judge.

The plaintiff was nonsuited because he failed to prove that the defendant was controlling or operating the street railway upon which the accident happened, and a new trial is now asked for on the ground that plaintiff’s counsel had some reason to be surprised when this defense was set up. The question of surprise need not be considered. The difficulty in the way of granting the present motion is that, so far as appears, a second trial would probably find the plaintiff in the same situation as at the first. No deposition — not even an ex parte affidavit — is laid before the court from which an inference might be drawn that the necessary proof is likely to be forthcoming; and with commendable frankness the plaintiff’s counsel declared that he could not go further than to say that he believed he would be able to produce the evidence required. His mere belief is so plainly insufficient that it does not call for discussion, especially as it is met by a positive assertion from defendant’s counsel that no such evidence exists. Upon such a motion as this some degree of proof is indispensable.

A new trial is refused.  