Moore

This is a second appeal in an action brought by appellee to recover damages for alleged malpractice in -the care and treatment of the appellee while he was suffering from a fracture of the surgical neck of the right femur. For a more detailed statement of the facts we refer to our opinion in the former appeal, 9 Cir., 78 F.2d 821 .

*41 The appellant diagnosed the fracture as impacted and treated it as such. The appellee claimed that it was unimpacted. We held on the former appeal that there was not sufficient evidence to go to the jury on the question of whether or not the appellant was negligent in making the diagnosis of impacted fracture. We further held the evidence insufficient to show that the appellee suffered damages by the alleged acts of malpractice. The appellant claims that upon the retrial these deficiencies were not supplied and therefore the evidence was insufficient to submit to the jury.

The evidence was conflicting as to whether or not there was negligence in the diagnosis and treatment of the fracture but there was ample evidence upon which to submit that question to the jury. There was testimony by the appellee, his son and son-in-law, who were present at the…