(dissenting).
The jury was, I think, justified in returning a verdict for the appellant, and the District Court erred in directing a verdict for appellee, unless Willis was selected by the men to act as lookout. But the only evidence of that fact was the testimony of Donofrio and Myers, his fellow workmen, that Willis, by agreement, “was to do the watching.” The trial judge put squarely up to the jury, in his charge, the issue of whether that testimony was credible. He said:
“It will be for you to say if the evidence indicates that these two men, Myers and Donofrio, were working physically, one using a sledge and the other holding the plunger, and if Willis was not doing any work it would be for you to say whether you can rely on their testimony that it had been suggested that he, Willis, was to do the watching. * * * If you find that the defendant was negligent in permitting the men to work as the testimony shows that they did, you may still inquire whether Willis contributed to the accident by his own negligence, if he was negligent; that is, by failing to observe the approach of the first car that struck him in time to avoid being hit. * * * Mr. Willis was re*251quired to watch out for approaching cars for himself and his fellow workmen, if you accept the testimony of Myers and Dono-frio, and if his failure to do this was the proximate cause of his death your verdict must be for the defendant.”1
Implicit in the jury’s verdict was a refusal to believe the testimony of Donofrio and Myers. If they were entitled to reject this uncontradicted evidence, there is, I think, no basis for the conclusion that the evidence could not sustain a verdict against appellee.
Whether a jury is at all times privileged to ignore uncontradicted testimony is a question on which the courts have often disagreed.2 A commentator discussing the decisions has candidly stated that “the courts apply one [rule] or the other as they mean to leave the matter to the jury, or to interfere.”3 It is generally accepted that a jury may ignore such testimony when there are factors which tend to discredit it.4 Here, to be sure, the testimony was given by way of deposition rather than orally. Nevertheless, I think we are without power to say that the jury erred if it ignored such testimony, since we cannot say that that conclusion may not reasonably have been based upon the relation of employee and employer between the witnesses and appellee, especially in an action where the injured fellow employee is dead. The peculiar and subtle influences which are exerted, even without outward manifestation — or, indeed, without intention — by employers upon employees have been recognized both in judicial decision and in statute; and we should not deny the jury the power to take such influences into account. The admiralty courts, whose awareness of the realities of the employment relation has, seemingly, often been in advance of that of common law courts,5 early recognized that the testimony of seamen which tended to exonerate their master or themselves was of little weight.6 I would not here go so far, but I would hold that this is a factor which the jury may properly consider and which would justify it in disregarding such testimony. Moreover, to the influence of the employment relation could be added the fact that the evidence given by the men cleared them of possible blame for the fatality; in thinking that the jury should be allowed to take these facts into account, I believe I have some support even in the common law cases,7 and I am not aware of any decisions to the contrary.
When, by constitution or otherwise, the jury is the established instrument of fact-finding, it is not, I think, for judges, whatever personal doubts they may have as to its efficacy,8 to fetter its historic function of passing on the credibility of witnesses.9 To put the matter in terms of conventional stereotypes, the credibility of witnesses is not a question of “law” for the court, but one of “fact” for the jury.
The following should also be noted:
“Mr. O’Neill: We ask your Honor to say to this jury that in view of the relation between the defendant and Myers and Donofrio and their testimony that is given here such contradictions as may possibly exist or which the jury may find to exist — I withdraw part of it and insert this: which they may find existed that they are not obliged to believe Willis was not actually working with them at the moment of the accident, and in that connection they may consider the character of the evidence for that reason, and they are not obliged to accept at face value the testimony of those witnesses but only what they believe to be true.
“The Court: That is true as to all testimony.”
See cases cited in Annotation on disregarding uncontradicted testimony in civil actions, 8 A.L.R. 796. See generally Moore, Facts, Sections 66-131,
8 A.L.R. 796, 797.
Quock Ting v. United States, 140 U. S. 417, 420, 11 S.Ct. 733, 851, 35 L.Ed. 501; F. T. Dooley Lumber Co. v. United States, 8 Cir., 63 F.2d 384, 388; Spiro State Bank v. Bankers’ Insurance Co., 8 Cir., 69 F.2d 185, 188.
Cf. Hume v. Moore-McCormaek Lines, Inc., 2 Cir., June 23, 1941, 121 F.2d 336.
Moore, Facts, Sections 1021, 1110.
Craft v. Northern Pacific R. Co., C. C., 62 F. 735, 739; Robinson v. New York Central R. Co., C.C., 9 F. 877, 878; Thomas v. Delaware, L. & W. R. Co., C.C., 8 F. 729, 731; but see Hauss v. Lake Erie & W. R. Co., 6 Cir., 105 F. 733, 736. Cf. Moore, Facts, Sections 1117, 1109; 8 A.L.R. 796, 820-823.
It happens that I have, elsewhere, expressed such doubts concerning the jury in non-criminal cases.
Cf. Conway v. O’Brien, 61 S.Ct. 634, 85 L.Ed. 969, reversing this court’s decision in 2 Cir., 111 F.2d 611.