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MANN v. FUNK et al. (NATIONAL THREAD CO. of New York City et al., Third Party Defendants).

No. 8448.

Circuit Court of Appeals, Third Circuit.

Argued Feb. 23, 1944.

Decided Feb. 29, 1944.

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.

PER CURIAM.

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 ex*261cessive. 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.

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