(dissenting).
Because the decision about to be rendered by the majority destroys a jury’s determination, whieh should prevail here, I dissent.
The credibility of witnesses, the weight and probative value of all the evidence, are to be determined by the jury and not by the judge. Southwestern Brewery v. Schmidt, 226 U. S. 169, 33 S. Ct. 68, 57 L. Ed. 170; Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419. It is not within the province of the court to pass upon the credibility of the witnesses;’ that is the jury’s function. A judge may determine whether upon all the evidence a jury could reasonably have found for the plaintiff, and, if the jury could not, the verdict may be set aside. But we may not set aside a verdict simply because we disagree with the finding.
The appellee is uncontradicted in so far as he relates how he scratched his foot on a nail projecting from a slat from a broken box when going to his duties on a dark night. The steward denied having been told about the scratch but his unreliability was clearly shown by his connection with what appeared to have been an offer to sell his testimony to the highest bidder. Appellee’s explanation of his failure to consult with a physician, who was on board primarily to discover venereal disease, is not conclusive but goes merely to his credibility. And it was for the jury to weigh the testimony of the claim adjuster keeping in mind his interest and contradictory statements.
Dr. Perez’ denial of having been told about the scratch and the apparent resentment shown by him at the slightest intimation of lack of professional ability, his resulting hostility, the fact that he did not make out his report or history of the appellee’s ease the day he made the examination, together with his ability or inability to understand English, were all circumstances to be weighed by the jury; particularly the probability of misunderstanding the appellee. Nor was it an outstanding or determining circumstance that the appellee failed to inform the other doctors of the scratch in view of what a layman of his mentality might have thought if a doctor had been told of a scratch and appeared to consider it unimportant.
. The medical testimony that an external injury would not be a competent producing cause of dry gangrene was in conflict. Although the doctors testified that there was no infection, it must be observed that they had not seen the foot until after gangrene had set in and what observations they did make were probably influenced by preconceived ideas gathered from Dr. Perez’ prior report. In any case, the weight of this expert testimony was for the jury. McGowan v. American Tan Bark Co., 121 U. S. 575, 7 S. Ct. 1315, 30 L. Ed. 1027. In my opinion we cannot say that the jury were unreasonable in giving credit to Redman’s testimony that there was infection and to the testimony of others that an infected scratch, could have brought on the gangrene.
In Union Indemnity Co. v. Leidesdorf, 37 F.(2d) 26, we held that the evidence did not warrant the case going to the jury where the facts could not possibly support the plaintiff’s theory. To be sure, in every case before the question of fact is left to the jury, there is for consideration of the trial judge the preliminary question of whether there is literally no evidence or whether there is any evidence upon which the jury could properly proceed to find a verdict. That is not the instant case.
In Pennsylvania R. R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391, 77 L. Ed. 819, the court held that the trial judge may not submit to the jury issues of fact where uneontradieted and unimpeached witnesses show affirmatively that the facts sought to be inferred did not exist. But here we have a question of credibility only, whieh is peculiarly for a jury. No inference has to be drawn that there was an infection, for there is positive testimony to that effect. The appellee testified that he noticed his foot swollen and discolored where the nail went in, and where it was cut there’was a red and swollen spot and “later it went to his toes.” In this situation, the trial judge could have done nothing other than submit the question to the jury. AEtna Life Ins. Co. v. Ward, 140 U. S. 76, 11 S. Ct. 720, 35 L. Ed. 371.
Nor does this case come within the rule announced in Penna. R. R. Co. v. Chamberlain, supra, that, where proven facts give *639equal support to each of two inconsistent inferences, in which event, neither of them being established, judgment as a matter of law must go against the party on whom rests the necessity of sustaining one of these inferences as against the other before he is entitled to recover. The fact here is that the appellee’s case rests upon sufficient support in the testimony that he had an infection resulting from a competent producing cause, which in turn resulted in gangrene setting in and the ultimate amputation of his leg. The judgment should be affirmed.