352 F2d 517 Connorton v. Harbor Towing Corporation

352 F.2d 517

Melvin A. CONNORTON, Appellant,

No. 9998.

United States Court of Appeals Fourth Circuit.

Argued Nov. 4, 1965.
Decided Nov. 8, 1965.

Bernard M. Goldstein, Baltimore, Md., for appellant.

Randall C. Coleman, Baltimore, Md. (Manfred W. Leckszas and Ober, Williams & Grimes, Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.


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Appellant fell and struck his chest on a bitt aboard appellee's tugboat. He appeals from the finding below that the fall was not a proximate cause of pulmonary tuberculosis the presence of which was confirmed one year after the accident. Counsel for appellant argues persuasively that the testimony of his two medical experts would abundantly support a finding that trauma was a causative factor in precipitating the disease.


There was, however, ample evidence to support the finding below. Appellee's medical expert minimized the role of trauma in activating pulmonary tuberculosis. Hospital records of extensive tests performed over a two month period shortly after the accident failed to reveal positive signs of active tuberculosis at that time. As to the adequacy of two months observation in diagnosing the presence of pulmonary tuberculosis, the medical experts were in conflict.


In the face of the conflict in testimony and the substantial evidence on both sides, we do not think this case compels a finding for the appellant. An appellate court is not the proper forum to refight a battle of expert witnesses. Even if we would have resolved the conflict in evidence differently, we will not interject this court into the fact finding process in the absence of clear error.


The decision with respect to maintenance is also affirmed for the reasons given by the court below.