(dissenting).
If the motion made here had been for a directed verdict I would agree that it would be error to grant it. The main opinion —which I confess some difficulty in following — appears to assume that the same principle applies in the case of a motion for a dismissal upon a trial to the court, that is, that the court is obliged to deny the motion if, on the same state of the proof, it would be obliged to deny a motion for a directed verdict in a jury case. The Third Circuit has so held, Federal Deposit Ins. Corporation v. Mason, 115 F.2d 548; *994Schad v. Twentieth Century-Fox Film Corporation, 136 F.2d 991. This court, however, has heretofore committed itself to a contrary doctrine, Young v. United States, 111 F.2d 823. So also, and more clearly, has the Seventh Circuit, Gary Theatre Co. v. Columbia Pictures Corporation, 120 F. 2d 891.
As is recognized by the authorities last above cited, the situation is governed by Rule 41(b), a rule to which no adequate attention is given by the majority. This provides that “after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Unless the court otherwise specifies a dismissal under this subdivision operates as an adjudication upon the merits. The rule so provides. The judgment of dismissal entered in this instance was unqualified, so that beyond question it operated as a disposition of the case on the merits.
As I understand the holdings in the Young and Gary Theatre cases, supra, in a non jury case the court, on a motion to dismiss under the above quoted provision of Rule 41(b), applies its own untrammeled judgment to the evidence introduced by the plaintiff. The court, being itself the trier of the facts, is entitled to pass on questions of credibility, to weigh the evidence and to draw inferences from it, notwithstanding other inferences might reasonably be drawn or a contrary conclusion reached by rational minds. I think this is the correct interpretation of the rule, since by its wording the court is called upon to determine, not only the law, but the facts. If, at the close of the plaintiff’s evidence, the court has fully made up its mind that the showing is insufficient to warrant recovery, there is no good reason why it should not at that point dispose of the case on the merits. It should, however, make findings as contemplated by Rule 52(a). And findings so made are to stand unless clearly erroneous. See the Young and Gary Theatre cases, supra.
In this instance the trial court made no findings. It was, I think, obliged to do so. It ought also be said that where the case is at all close the better practice is to deny the motion and let the trial proceed in order that a complete picture may be presented in the event of an appeal. It would doubtless have been well to follow that practice here. It is true that the plaintiff went farther than he needed to in his development of the proof, calling, in addition to his own witnesses, two employees of the defendant. These testified to the previous careful training as well as to the prior exemplary conduct of the mule in question. I may add that the trial court displayed no misunderstanding of the law applicable in suits of this nature, and it is plain that the judge believed no substantial case of a failure to exercise reasonable care had been made out.
It may not be out of place to comment briefly on the factual situation as pictured by my associates. There was no showing that the “locale was dangerous” or the trails narrow. The testimony is that Bright Angel trail varies in width from four to six feet. It was not shown nor is it claimed that the circular read by the plaintiff was false in any particular or that the information given plaintiff by the ticket seller was inaccurate or misleading. So far as the proof goes all statements made by the defendant accurately reflected the prior experience of its service.
Of course, unlike the owner of the mule, my associates have the inestimable advantage of hindsight^ so that they are able to tell us how the animal would probably perform under the conditions given. I pose as no expert, but I venture to believe that they oversimplify the case. If this mule, soft as were he and his mates after a winter on pasture, were inclined to resent the saddle and to buck, one would expect him to perform while still untired, whereas the testimony is that he had been on the trail nearly four hours before anything untoward happened beyond the occasional display of a tendency to press the mule ahead of him. Chiggers was not the only mule in the string provided with a bridle and reins; the others were similarly equipped. It is to be surmised that in no case was the equipment ornamental, but was intended for use in the customary way as a means of control. A mule is not a machine but a sentient animal, and I suppose that the conduct even of the most tractable of the species is not entirely predictable. Any novice who essays to ride a mule or a horse must realize that the definite risk of being thrown is inherent in the enterprise; and my brothers concede that the law does not hold the renter as an insurer.