Opinion
James Alberti sued the Automobile Shippers, Inc., for injuries sustained in traffic accident as a result of defendant's alleged negligence.
Plaintiff neglected to demand trial by jury within time provided and moved that court order a trial by jury.
The District Court, Jones, Chief Judge, granted the motion on the ground that defendant did not object to the trial of the case by a jury and held that the case was one peculiarly to be decided by a jury.
M. W. Kosach, Youngstown, Ohio, G. F. Hammond, Youngstown, Ohio, for plaintiff.
Davis & Young, Rees H. Davis, Cleveland, Ohio, for defendant.
JONES, Chief Judge.
This is a complaint for negligence wherein plaintiff allegedly suffered personal injuries as a result of a traffic accident.
Plaintiff neglected to demand a trial by jury within the time limit provided by Rule 38(b), Federal Rules of Civil Procedure, 28 U.S.C.A., and now moves that the Court order a trial by jury under the provisions of Rule 39(b). A stipulation has been filed whereby defendant waives any objections to the trial of the case by a jury.
Although counsel offer no explanation for their failure to demand a jury trial within the time provided by Rule 38, the facts that the defendant does not object and that this is a personal injury case and therefore ‘ peculiarly one to be decided by a jury’, S. S. Kresge Co. v. Holland, 6 Cir., 158 F.2d 495, 497, the motion will be granted.