Ward v. Consolidated Rail Corp.

While I tend to agree that the trial court initially erred under existing law when it concluded that plaintiff was entitled to an adverse presumption,1 I am not as convinced as the majority that the trial court ultimately erred when it instructed the jury that it could infer that the missing evidence was unfavorable to defendant.2 Moreover, even assuming that the trial court erroneously instructed the jury, I would conclude that the error was harmless.

Here, the jury found that defendant was not negligent under the Federal Employers’ Liability Act (FELA), 45 USC 51 et seq. The jury also…