March 17, 1965
RICHARD N. SUNDERLAND, ADMINISTRATOR OF THE ESTATE OF SHERMAN E. SUNDERLAND, DECEASED, APPELLEE,
THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY, APPELLANT.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
In the first appeal in this litigation we held it presented questions of fact which should have been presented to the jury. At the second trial the court concluded that the issue on negligence was for the jury. The latter decided in favor of the plaintiff.
Both the merits and damages were argued carefully and precisely on behalf of appellant. The testimony tending to show the proximate fault of the railroad was sparse but under it the court was justified in its conclusion that it presented a factual issue.
Appellant argues strongly that the son's testimony regarding the family services of the father was hearsay. We do not think that the trial judge erred in holding that it was based on first-hand knowledge.
The judgment of the district court will be affirmed.
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