hot packs to his leg. He was discharged about February 23, 1954 and returned to work for about six days. At the end of that time, the soreness in his left leg returned and he went back to the hospital on March 9th under the care of Dr. Scuka. The latter related the blood clot to the scar tissue that formed after the injury to his left leg in 1929. Dr. Scuka was concerned and discussed his concern 'as to how this previous injury could now be causing this trouble' with plaintiff, '* * * I know that he had the leg X-rayed, and after having it X-rayed suggested that the bone seemed to have grown more where it was broken, over the one groove against the other, where the nerves and blood vessels passed down between, and they might be pinched there between the two bones.' N.T. p. 139.
While at the hospital the second time, plaintiff suffered two embolisms in the chest caused by blood clots which disappeared after treatment. Plaintiff continued at the hospital and in early April, 'Dr. Scuka suggested that although I was getting along all right, he thought he better see if he could determine if the cause of the clot where the break in my bone, my left leg, had occurred back in 1929, to see if that had caused it and he suggested an X-Ray of the blood vessels by injection of dye in my left foot, which was attempted, but wasn't completed. It wasn't * * * they wasn't able to complete it * * *.' N.T. pp. 141, 142.
He also testified that the doctors had first tried unsuccessfully on five occasions to take an X-Ray of his legs by tapping a vein there and injecting some dye. They couldn't find a vein to take the tap. N.T. pp. 196, 197. An arterial tap was then suggested and the attempted aortogram followed.
Because of this testimony, there is as much reason to believe that plaintiff's peripheral vascular problems and his present condition are due to his accident in 1929 as to the attemped aortogram in 1954. They are both speculative.
Plaintiff has not only failed to produce competent and convincing evidence of negligence on the part of defendant, but has also failed to show that plaintiff's present condition was caused by or resulted from defendant's conduct. Vaccaro v. Marra Bros., Inc., D.C.E.D.Pa.1955, 130 F.Supp. 12 (opinion by Grim, J.); Powell v. Risser, 1953, 375 Pa. 60, 68, 99 A.2d 454.
Finally, plaintiff suggests through the testimony of Dr. Manchester that an operation known as a laminectomy should have been performed within 120 hours after the attempted aortogram. Dr. Manchester describes a laminectomy as an operation in which one opens up the subarachnoid space and aspirates it, sucks up the blood therein, washes it out with saline and injects some steroid solution. Dr. Manchester performed one such operation and concluded that a laminectomy 'might have been helpful * * * to reduce the tendency for inflammatory reaction,' and referring to plaintiff's condition, 'might have prevented this.' N.T. pp. 90, 92. This is the only evidence in the record in which an attempt is made to link defendant's alleged negligence after the attempted aortogram and plaintiff's condition. Such evidence is insufficient as applied by the tests established by the Pennsylvania Courts. Powell v. Risser, 375 Pa. 60, 68, 99 A.2d 454, supra; Vaccaro v. Marra Bros. Inc., D.C., 130 F.Supp. 12, supra. In the latter case, the Court said (130 F.Supp. at page 14):
'In order to link her impaired physical condition to the defendant's conduct, the plaintiff was forced to depend on expert medical testimony because scientific knowledge was required for the elucidation of the question * * *. Moreover the expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence. Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 206, 133 A. 256; Powell v. Risser, 375 Pa. 60, 68, 69, 99 A.2d 454 * * *.'
In other words, Dr. Manchester's testimony is a mere guess and falls below 'the required standard of proof and does not constitute legally competent evidence.'
The plaintiff has failed to sustain his burden and there is nothing on which a jury could base a finding against defendant. See Mundano v. Philadelphia Rapid Transit Co., 1927, 289 Pa. 51, 137 A. 104 and the cases in its train, including Norwood v. Great American Indemnity Co., D.C.E.D.Pa.1943, 51 F.Supp. 832; Widder v. New York, Chicago & St. Louis R. Co., D.C.W.D.Pa.1955, 142 F.Supp. 830.
'If the plaintiff cannot show the possibility of a conclusion of defendant's negligence supported by a clear preponderance of its likelihood * * * and excluding other probabilities just as reasonable * * * the plaintiff should not be permitted to go to the jury. The circumstances must compel the conclusion that the defendant was negligent. * * * The jury may not be allowed to guess.' Nash v. Raun, 3 Cir., 1945, 149 F.2d 885, 888, certiorari denied 326 U.S. 758, 66 S. Ct. 99, 90 L. Ed. 455; Medina v. All American Bus Lines, Inc., 5 Cir., 1945, 152 F.2d 61; Warren v. Haines, 3 Cir., 1942, 126 F.2d 160. Compare Ebersole v. Beistline, 1951, 368 Pa. 12, 82 A.2d 11.
We believe that there is no clash between our conclusion and that of the Court of Appeals in this Circuit as expressed in Johnson v. Baltimore & O.R. Co., 3 Cir., 208 F.2d 633 and Larkin v. May Department Stores Co., 3 Cir., 250 F.2d 948, which are distinguishable on their facts.
The above constitutes our findings of fact and of law. Plaintiff's motions to set aside judgment of involuntary dismissal under Rule 41(b) and for a new trial will be dismissed.