The opinion of the court was delivered by: DUSEN
This case, based on the alleged breach of an implied warranty made in June 1955 to repair a tug boat engine in a skilled and workmanlike, manner, is before the court on (a) the plaintiff's Motion For New Trial (Document 46) filed after a jury verdict
for defendant on the issue of liability, and (b) the motions of both parties for a directed verdict made at the conclusion of all the evidence, on which motions judgment was reserved (N.T. 1359-60).
A. Contention that verdict is against the evidence and the weight of the evidence
The jury may well have accepted evidence justifying the finding of these facts, as recited in defendant's brief at pp. 1-3 (Document 51):
'Marine Towing Company, Inc., Plaintiff in this action, owned and operated the tug 'Lewis F. Boyer'. The tug was powered by a Model 35 E 14 diesel engine manufactured by Fairbanks, Morse & Co. (Fairbanks), the Defendant. This engine was extremely old, being a model which Fairbanks had not had in production since 1922 (N.T. p. 15). The tug had been acquired by Plaintiff in April, 1955; had lain idle for over a year prior to that time; and after a few weeks operation by Plaintiff had burned out all the main bearings in the engine. 'One of Plaintiff's expert witnesses, Mr. Boakes, volunteered the statement that he remembered seeing the 'Lewis F. Boyer' plying the Delaware River from his earliest boyhood (N.T. p. 551). The vessel had * * * reached an age where it was economically unsound to operate, * * *. When the main bearings burned out after a few weeks of operation, Plaintiff wanted the engine repaired at minimum cost and refused to go to the expense of a complete overhaul. This is * * * shown by the testimony of Plaintiff's own witness, Mr. Huxford. (N.T. pp. 501-509).
'* * * when Fairbanks' erector, Mr. Rabuse, went to work on the engine, he was forced to work under the most adverse conditions, with inadequate cranes; unskilled help; the vessel resting on the bottom of the river at low tide; inadequate access; no heat; etc. In addition, some of the work had to be done over because of hurricane damage (N.T. pp. 944-5).
'* * * Mr. Anderson, Fairbanks' supervisor, stated positively that Rabuse was a well-qualified erector (N.T. p. 84), * * *. The log books * * * (show) that the vessel was put back in operation in January, 1956 and operated regularly for a period of * * * (several) months, without difficulty with the main bearings. When they did burn out, it was due to the fact that Plaintiff had refused to replace two cracked cylinders, (which leaked water into the lubricating oil) although it had been advised by Fairbanks that the latter would accept no responsibility unless this was done.'
Under the facts in this record, the trial judge is not permitted to substitute his evaluation of the evidence for that of the jury, even if he disagrees with the jury's verdict. See Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir.1960).
B. Contention that Anderson should not have been permitted to express an opinion on the qualifications of defendant's other employees (page 13ff. of defendant's brief)
A qualified expert such as Anderson is entitled to give his opinion on the ability of persons working under his supervision to repair an engine such as the one on 'The Boyer.'
As stated in VII Wigmore, Evidence (3rd Ed.), at pp. 155-6: 'Testimony to professional skill, concerning either party or witness, when furnished by professional persons qualified to know, is also generally regarded as receivable.' See, also, Mulhollen Appeal, 155 Pa.Super. 587, 595, 39 A.2d 283 (1944), quoting the above text. In Laros v. Commonwealth, 84 Pa. 200 at page 209 (1877), the Supreme Court of Pennsylvania said:
'If I have seen a workman doing his work frequently, and know his skill myself, surely, if I am myself a judge of such work, I can testify to his skill.'
See, also, other authorities cited at pp. 5-6 of defendant's brief (Document 51). It is noted that Anderson did not express an opinion on the work of any of the employees of defendant in the language of question 1 as submitted to the jury. For example, the opinion of Rabuse's work (N.T. 1231) complained of at p. 14 of plaintiff's brief (Document 50) was worded: