Wendell E. Losey and Betty J. Losey v. North American Philips Consumer Electronics Corporation ( 1986 )

WELLFORD, Circuit Judge,

concurring.

This is a close case vigorously tried by the parties’ respective counsel and seriously contested. As indicated by Judge Jones, we may have valued plaintiffs’ damages differently particularly with regard to the issue of remote contributory negligence on the part of Losey. We cannot say, however, that reasonable jurors must necessarily have found direct contributory negligence or assumption of risk on this record so as to preclude any recovery. While damages may seem high in light of the uncertainty of loss in actual compensation suffered by Losey at the time of trial, his claim was for diminished earning capacity, for medical expenses, for pain and suffering, and for diminished mental and physical capacity not only with respect to his employment but in enjoyment of other aspects of his life for a substantial period of life expectancy. While this Judge may have viewed the evidence in a decidedly different fashion from that of the jury in this case as to assessing fault and/or damages, our role, as set out by Judge Jones, is to determine whether error has been demonstrated requiring that we set aside the jury award.

I concur that such error has not been shown and that we must accordingly AFFIRM.