(dissenting).
I am unable to agree with the majority opinion for the plain reason that no causal connection was established between the defendant’s alleged negligence and the plaintiff’s injury.
There are only two charges of negligence of the defendant which I can fathom from the majority opinion. The first is that Taylor, the operator of the Cribber, was unskilled in the handling of this machine and second, that Taylor was negligent in raising the arm of the Cribber *740while the plaintiff was standing so close to the machine.
As to the first charge of negligence, there is nothing to show that Taylor’s operation of the Cribber was unskillful. He was doing the very thing that any operator of the machine would have done. No one testified that he was operating too fast or too slow or that the manner it was being operated would have injured anyone who would keep their hands out of the machinery. There is no evidence that anyone told Taylor to handle the Cribber in any other manner than he did. There was nothing to show that he operated the Cribber in any manner different from what a skilled operator would have done. His lack of skill, if any existed, had nothing to do with the accident. ■
The remaining question is whether Taylor was negligent in operating the machine with the plaintiff standing near it. Plaintiff’s own witness testified that the Cribber was a simple machine to operate. Plaintiff’s exhibits, showing a picture of the Cribber, clearly reveals that there was nothing dangerous to a person standing near the Cribber. In order for the plaintiff to receive the injury that he did in this case took positive action on his part. If he had kept his hand away from the moving parts of the machine he would not have been injured. I submit that any reasonable man occupying the position on the machine and having the responsibility of operating it as Taylor did, would never think that a man standing near the machine would stick his hand into a place of danger. Negligence on the part of Taylor did not exist.
The injury in this case was due to the negligence of the plaintiff and his alone. The plaintiff’s testimony quoted in the majority opinion shows beyond question that this is true.
Under the Federal Employers’ Liability Act, a plaintiff can only recover when it is shown that the defendant was guilty of negligence and that such negligence contributed to or was a proximate cause of the injury of the plaintiff, in whole or in part.
Under said Act, it is possible that a defendant was guilty of negligence and yet the plaintiff may not be entitled to recover because the negligence of the defendant is not shown to have contributed to the accident and is not shown to have been the proximate cause thereof. The case of Gill v. Pennsylvania R. Co., 3 Cir., 1952, 201 F.2d 718, announced the following rule:
“The Federal Employers’ Liability Act does not make the employer the insurer of the safety of his employees while they are on duty, but makes the basis of the employer’s liability his negligence, not the fact that injuries occur, and his negligence must in whole or in part he the cause of the injury. Federal Employers’ Liability Act, § 1 et seq., as amended, 45 U.S. C.A. § 51 et seq.
“The weight of the evidence under the Federal Employers’ Liability Act must be more than a scintilla before the case may 'be properly left to the discretion of the jury. Federal Employers’ Liability Act, § 1 et seq., as amended 45 U.S.C.A., § 51 et seq.
“Where evidence in case under Federal Employers’ Liability Act is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise. Federal Employers’ Liability Act, § 1 et seq., as amended, 45 U.S.C.A. § 51 et seq.”
In Fore v. Southern Railway Co., 4 Cir., 1949, 178 F.2d 349, the court said in the Headnotes:
“Under Federal Employers’ Liability Act, employer is not an insurer and injured employee can recover only on proof of negligence on part of employer which is proximate cause of injury to employee. * * *
“Weight of evidence under Federal Employers’ Liability Act must be more than scintilla before case may be properly left to discretion of trier of fact.!’
*741In the body of the opinion, 178 F.2d on page 351, the court said:
“On the other hand, the Supreme Court has made it crystal clear that under the Act the employer is not an'insurer and that the injured employee can recover only upon proof of negligence on the part of the employer which is the proximate cause of the injury to the employee. * * *”
Attention is called to the recent decision of this Court in Billy v. Texas, O. & E. R. Co., Okl., 263 P.2d 187, in which this Court announced the Correct rule in the first paragraph of the syllabus as follows:
“In a suit for damages for personal injuries, although the defendant may be shown to have been negligent in some manner, yet; unless the negligence so shown was the proximate cause of the injury complained of, no recovery can 'be had on account -of such negligence.”
Under the Federal Employers’ Liability Act it has been held, and properly so in my judgment, that a railroad is not required to anticipate and guard against unexpected and improbable dangers to employees. Morey v. Maine Central R. Co., 127 Me. 190, 142 A. 585.
Also it has been said that events too remote to require reasonable prevision need not be anticipated. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239.
In Louisville & N. R. Co. v. Davis, 6 Cir., 75 F.2d 849, it was held error to allow recovery for injuries sustained by an employee where evidence disclosed that employee’s negligence was the sole proximate cause of injury notwithstanding employer was also negligent, and employee could not reasonably have anticipated the precise manner in which injury-would occur since generally dangerous situation was foreseeable.
Under the above decisions, it was not only necessary for the plaintiff to prove that the defendant was guilty of negligence, but also that such negligence contributed to and was the proximate cause of the plaintiff’s injury. There is no testimony to show that any act on the part of the defendant was the proximate cause of plaintiff’s injury or established a- causal connection between alleged negligence • of defendant and plaintiff’s injury. Atchison, T. & S. F. R. Co. v. Saxon, 284 U.S. 458, 52 S.Ct. 229, 76 L.Ed. 397. Plaintiff admitted that his injury was the result of his own carelessness. His honesty is commendable and his misfortune elicits sympathy, but under the facts before us, I am unable to agree that the evidence warranted the court in submitting the issue of negligence to the jury. For these reasons, I respectfully dissent.