Before SWAN, CLARK and FRANK, Circuit Judges.
1. The judge's opinion and findings state facts which justify his legal conclusion as to appellant's negligence. The evidence amply supports the judge on that issue of fact. It should be obvious by now that we will not consider appellant's contentions which relate to the credibility of witnesses who testified in open court.*fn1 The judge correctly computed the wages lost by appellee and the medical expenses. We see no reason to change the amount of the award for pain and suffering.*fn2
2. But there remains the question of contributory negligence. The judge held that appellee was not negligent. This the judge correctly categorized as a "Conclusion of law." For we have held that whether or not one has been negligent is a "question of law," i.e., a question whether he has measured up to a legal standard. To answer that question, it is necessary, first, to ascertain the facts, i.e., what the person did or did not do; accordingly, we recently said (per Judge Learned Hand), that if a trial judge holds a party "not negligent" that is not a "finding of fact" which "we must accept unless 'clearly erroneous.'" Barbarino v. Stanhope S.S. Co., 2 Cir., 151 F.2d 553, 555.*fn3 In order, then, to sustain the judge's conclusion in the instant case that appellee was not negligent, we must either (1) have a finding by the judge, supported by substantial evidence, of facts from which we would be obliged to rule that his legal conclusion of non-negligence was correct or (2) evidence so plain that we ourselves could not reasonably avoid making such a finding.The judge made no finding of fact whatever on this issue. The evidence with respect thereto is not clear. On cross-examination, appellant seems to have answered the same question in two different ways:
"Q. You say that oil and grease had been there? A.Yes.
"Q. In that very spot? A. All over the winches.
"Q. I mean, the oil in which you slipped had been there for some time, had it? A. Oh, sure, it was some time.
"Q. When did you first see it there? A. The first day when I come in to work.
"Q. The first day when you came in to work? A. Friday.
"Q. The very spot in which you slipped you saw when you first went to work? A. Not the very spot. I slipped near to that place.
"Q. When did you first see the oil in which you slipped? A. Between the winches.
"Q. When did you first see it? A. The first day when I came in to work.
"Q. The first day when you came to work? A. Yes.
"Q. That is, the very oil in which you slipped you saw when you first ...