no evidence in this record one way or the other upon that question.'
The record then shows the following colloquy between the Court and counsel:
'(The Court): Is that statement satisfactory, gentlemen?
'Mr. Martin: Yes, your Honor.
'Mr. Feeney: Yes, it is, your Honor
Without endeavoring to speculate as to the relevancy of the jury's question upon the issue of damages, it is sufficient to note that counsel for the defendant was provided with full opportunity to object to the Court's statement, or to request a supplementary statement if he felt further comment was desirable. He did not do so, and as a result is precluded from raising this objection at this late date. Fed.R.Civ.P. 46 and 51. See Patton v. Baltimore & O.R. Co., D.C.W.D.Pa., 120 F.Supp. 659, 669, affirmed per curiam, 3 Cir., 1954, 214 F.2d 129. Compare Smith v. Ellerman Lines, 3 Cir., 1957, 247 F.2d 761; Snyder v. Lehigh Valley R. Co., 3 Cir., 1957, 245 F.2d 112.
6. After a careful review of the record, the Court also finds without basis defendant's contention that plaintiff's counsel used improper trial tactics and argument with respect to the failure of the defendant to produce an adequate photograph showing the condition of the pole involved in the accident.
Neither party produced at the trial a clear photograph of the surface of the pole from which plaintiff fell. The tactic about which defendant now complains is that plaintiff's counsel obtained from one of defendant's supervisory personnel an admission that the pole was still available and within the defendant's control. In his closing argument, he then argued to the jury that it might infer from the defendant's failure to produce a satisfactory photograph of the pole that such a photograph would have shown that the pole was so cut up as to have been unsafe for climbing.
Plaintiff's counsel merely took advantage of the recognized evidentiary principle that when a party has failed, without explanation, to produce material evidence which is available to that party, and it would naturally be to the interest of that party to produce such evidence, the jury may infer that the evidence if produced would have been unfavorable to that party. See Interstate Circuit, Inc. v. United States, 1939, 306 U.S. 208, 225, 59 S. Ct. 467, 83 L.ed. 610; Stoumen v. Commissioner, 3 Cir., 1953, 208 F.2d 903, 907. Furthermore, defendant in no way called to the Court's attention during the course of the trial any objection it might have had to the tactics or argument of which it now complains. Fed.R.Civ.P. 46. Nor did defendant's counsel note any objection to, or request any amplification of, that portion of the Court's charge in which the jury was instructed as to the manner in which it should view this evidence. Fed.R.Civ.P. 51. Defendant was represented by skilled and experienced counsel, and the Court is satisfied that plaintiff's counsel took no unfair advantage of him.
For the reasons stated, on order will be entered denying both of defendant's motions.
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