Opinion
No. 8448.
Argued February 23, 1944.
Decided February 29, 1944.
Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge.
Action by Solomon Mann against Andrew E. Funk to recover for damages and injuries sustained in an automobile collision, wherein defendant made the National Thread Company of New York and another third party defendants. From a judgment overruling defendant's motions to set aside verdicts and judgments entered thereon and to grant a new trial, 50 F. Supp. 305, defendant appeals.
Affirmed.
Raymond Bialkowski, of Scranton, Pa. (Bialkowski, Bialkowski Bialkowski, of Scranton, Pa., on the brief), for appellant.
Stanley F. Coar, of Scranton, Pa. (A.M. Lucks and David J. Reedy, both of Scranton, Pa., on the brief), for appellees.
Before JONES and McLAUGHLIN, Circuit Judges, and BARD, District Judge.
The fundamental questions raised by this appeal involve material issues of fact which it was the jury's duty to resolve. The evidence in the case amply supports the jury's verdict which implies a finding that the plaintiff's injury was due directly to the negligence of the defendant Funk. The question of his negligence, as well as that of the third party individual defendant, was submitted to the jury in a fair and impartial charge, to which the appellant took no exceptions in those particulars. Nor is any complaint made of the trial court's direction of a verdict for the third party corporate defendant. Not possibly would the trial court have been warranted in holding that the plaintiff was guilty of contributory negligence as a matter of law. In the light of the evidence, that question also was for the jury, to which it was fully and fairly submitted in language substantially as suggested by appellant's counsel at the trial. It was the trial judge's considered opinion that the amount of the verdict was not excessive. As to that, there is no legal basis for any difference of opinion on our part. Consequently any possible error in the trial court's submission to the jury of the expert testimony of the plaintiff's medical witnesses was harmless. Moreover, we fail to perceive the allegedly fatal conflict in that testimony which the appellant stresses and think that the evidence was both properly received and submitted.
The judgment of the District Court is affirmed.