Eric McNello v. John B. Kelly, Inc. v. B. J. Lucarelli and Company, Inc. (Third-Party Defendant)

303 F.2d 29

Eric McNELLO
v.
JOHN B. KELLY, INC., Appellant,
v.
B. J. LUCARELLI AND COMPANY, Inc. (Third-Party Defendant).

No. 13837.

United States Court of Appeals Third Circuit.

Argued April 24, 1962.

Decided May 2, 1962.

Norman Paul Harvey, Philadelphia, Pa. (John J. McDevitt, 3rd, Philadelphia, Pa., on the brief), for appellant.

Benjamin Pomerantz, Philadelphia, Pa. (Raymond Schwartz, Sheldon Kapustin, Philadelphia, Pa., on the brief), for appellee.

Before HASTIE, FORMAN and SMITH, Circuit Judges.

PER CURIAM.

1

This is an appeal from a judgment entered for the plaintiff on a jury verdict of $20,000. in a second trial of a personal injury case. An earlier recovery had been set aside by this court. McNello v. John B. Kelly, 3 Cir. 1960, 283 F.2d 96. In ordering a new trial we ruled that the evidence at the first trial sufficed to create a jury question whether it was reasonably foreseeable that the defendant's conduct might cause such harm as in fact resulted. It has been ably argued that the plaintiff's case on second trial did not contain certain evidence relevant to foreseeability that was introduced at the first trial and, therefore, that a jury case was not made out. The plaintiff's case on second trial was not a strong one but, under our ruling on first appeal, we think it was enough to warrant submission to the jury. No other point requires discussion.

2

The judgment will be affirmed.