Paul SIMMONS, a minor, by his father and next friend, Michael Simmons, Michael Simmons, individually and in his own right, Appellants, v.

GIBBS MANUFACTURING COMPANY, Appellee.

No. 13889.

United States Court of Appeals Sixth Circuit.

Feb. 10, 1960.

S. F. Komito, A. H. Dudnik, Cleveland, Ohio, for appellant.

Dan M. Belden of Black, McCuskey, Souers & Arbaugh, Canton, Ohio, for appellee.

Before MILLER and POPE, Circuit Judges, and KENT, District Judge.

PER CURIAM.

In an action filed by the appellants on behalf of a young boy three years of age against the appellee, the manufacturer of a toy spinning top, seeking damages for the loss of an eye alleged to have been caused by the negligent manufacture of the top, and tried to the Court without a jury, the District Judge found that the evidence failed to prove negligence on the part of the appellee, and dismissed the action.

The Court, being of the opinion that the finding is supporting by the evidence and is not clearly erroneous, Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., See: Graffius v. Weather-Seal, 6 Cir., 165 F.2d 782.

It is ordered that the judgment be affirmed.