Opinion
No. 13622.
Argued September 21, 1961.
Decided October 9, 1961.
Arthur R. Littleton, Philadelphia, Pa. (Morgan, Lewis Bockius, Philadelphia, Pa., on the brief), for appellant.
James E. Beasley, Philadelphia, Pa. (Beasley Ornsteen, Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
This is an appeal from a judgment for the plaintiff in an F.E.L.A. case. He claims permanent injury through an accident which occurred when he was stacking some lumber being torn from the ceiling of a building belonging to the defendant. The question of the believability of the plaintiff's story was a jury question and the jury took his version in the face of a strong case to the contrary. Complaint is made of several matters which occurred in the course of the trial. One has to do with the failure to grant a continuance at the defendant's request. Another has to do with the exclusion of proffered testimony based upon an Army medical report made seventeen years prior to the trial. Another has to do with whether there was anything to show contributory negligence which could have been argued to the jury. These first two objections fall within the general discretion of the trial judge who is in charge of the case. We agree that there was no evidence of contributory negligence. We do not find that here there was any reversible error.
The judgment of the district court will be affirmed.