(dissenting).
The rule requiring the direction of a verdict where the evidence is undisputed or of such a conclusive character that a verdict against it would be set aside by the court is well established. Equally well settled is the rule that a mere scintilla of evidence does not call for its submission to a jury. Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597; Mearns v. B. & O. S. W. R. (C. C. A.) 284 F. 31. It seems to the writer, however, that the evidence, inferences and presumptions in the instant case necessitated their submission to the jury for its determination of the passenger’s contributory negligence. Ryan v. Del. L. & W. R. Co. (C. C. A.) 8 F.(2d) 138; Perucca v. B. & O. R. R. (C. C. A.) 35 F.(2d) 113; So. Pac. R. R. v. Stephens (C. C. A.) 24 F.(2d) 182; Trenholm v. So. Pac. Co. (C. C. A.) 8 F.(2d) 452; contra Bradley v. Mo. Pac. R. Co. (C. C. A.) 288 F. 484.
I find myself unable to reconcile the majority views expressed in this ease with the majority opinion in Chicago & E. I. Ry. Co. v. Divine, 39 F.(2d) 537, recently decided by this court. The instant ease discloses a slightly different fact situation from the Divine Case. Perhaps, a more persuasive argument , to the jury might be made therefrom than in the Divine Case. In both eases, however, the evidence was such as to give rise to legitimate differences of opinion as to the facts as well as to inferences dedueible therefrom.
The instant ease must be differentiated from those cited by counsel, some of which appear in the majority opinion, because both of the participants in this accident mét their death instantly, and, therefore, were unable to give any testimony explaining or throwing light upon the passenger’s action or nonaction at the time of the accident. The present ease is, therefore, one where the presumptions and the burden of proof figure large in the determination of the passenger’s contributory negligence.
The meager testimony in the record bearing on this issue came from witnesses, who were some distance from the scene of the accident. It was therefore necessarily somewhat uncertain. This uncertainty is emphasized by the fact that such onlookers did not agree in all respects and as is usual in such situations none had reason to expect an accident until it occurred. One witness, in a car *15200 feet away facing the opposite direction, said she saw the passenger throw up her hands “in mercy” just as the ear went on the railroad track. No other of the five or six witnesses observed this action on the passenger’s part and the position of the observer in her car and of the passenger in the wrecked car left room for argument both as to its occurrence and its significance. This statement, moreover, if accepted, must be interpreted in conjunction with other testimony and presumptions before the court could sa.y as a matter of law that the passenger failed to act in accordance with the requirements of reasonable care, which the law exacted of the passenger. No witness was near enough to hear what took place between the two passengers, the mother and her daughter, at or just prior to the accident.
The passenger was the daughter of the driver. She was sixteen years old on the day of the aceident. She occupied the rear seat of the car. Her mother was an experienced, driver and familiar with the surroundings. It is undisputed that tho driver drove the car slowly to a point beyond the station where she “almost stopped” before proceeding slowly toward the track. The distance between the station and the track was about 39 feet and it is presumed that she saw the oncoming train. The fact that she almost stopped the car after passing the station supports an inference that she looked and saw the oncoming train. Surely a jury might have so concluded from such slowing down of the car. This being a controverted issue, we must, on a motion to direct a verdict, resolve it in favor of the party opposing the motion.
Tho fact that she proceeded after almost coming to a stop gives rise to one of two inferences. Either she intended to stop the car before going on the track or she concluded that she could pass over the track before the engine reached the crossing. That she drove slowly, as the testimony indicates (as slow as three miles per hour) strongly supports the first inference. What took place between the two occupants of the car in this interim, no one knows. Whether the daughter called to her mother, whether her mother heard her, or whether the mother became confused or panic-stricken, are facts concerning which wo can not speculate. Such inferences as may be drawn were for the jury to determine and the same fact finding tribunal was required to weigh them in the light of the applicable presumptions and burden of proof.
What was the duty of the passenger under the circumstances ? Should she have spoken and warned her mother of the approaching train? The jury could not have found that she failed so to do. Should she have assumed that her mother was intending to drive upon the track before the ear reached a spot where it could not he stopped to permit'the train to go by? There is no evidence in the record to support an affirmative answer. What then, under like circumstances, would the reasonably prudent girl of sixteen years of ago have done? Should she have jumped from the car?
The mentality, the experience and the care demanded of this supposititious individual, to wit, the reasonably prudent sixteen year old girl, is not definable in absolute terms. In a sense, such an individual is the creature of tho composite mind of the jury. Viewed from the standpoint of twelve jurors, she may be chargeable with more information and possessed of greater insight and foresight than she would be were she the creation of the trial judge, who, the jury being waived, would have been required to determine the existence or absence of ordinary care. Likewise, it must be admitted that different members of the same jury might well entertain different views concerning the mentality and insight of the said reasonably prudent girl of sixteen years. To illustrate, in ascertaining what such a girl would do under like circumstances, would it not be reasonable to expect that different men on the jury might have given different weight to the confidence of a young girl in her mother’s actions? Yet it is the so-called reasonably prudent girl of sixteen whose actions, under like circumstances, furnish the criterion by which the conduct and action of the passenger in this case must be judged. The standard not being absolutely fixed and defined, it is not easy for third parties to agree on what this conduct should be in a given case, and the uncertainty grows and the field of legitimate inquiry is widened when the proper function of the trial judge is applied. Por there is a vast difference between finding that the action of a passenger did not measure up to the standard fixed by the reasonably prudent person of like age and similarly situated and a finding that a record discloses a controversy as to such issue.
I am unable to say that the evidence conclusively showed it was the duty of this girl to jump from the moving car. Nor am I able to say that the record conclusively shows that the passienger did not warn her mother against the oncoming train or attempt to direct the action of the driver. There being a *16dearth of evidence showing what was or was not done by the passengers in the ear or what did or did not pass in the way of admonitions, warnings, or entreaties on the part of the daughter, the disposition of the case is controlled by the burden of proof. This burden rested upon the appellee. It was its duty to establish contributory negligence. The death of the parties, who alone could throw light upon this issue, was its misfortune.
It follows, therefore, in my opinion, that it was for the jury to determine whether the .burden of proof resting upon the defendant to establish the passenger’s contributory negligence had been overcome.