(dissenting).
Under the decision of this court, Eglsaer, Administratrix, etc, v. Scandrett et al, 7 Cir, 151 F.2d 562 (and the cases therein cited and discussed), I feel that this judgment should be affirmed. True, it is a weak case for the plaintiff but I believe there is evidence to go to the jury both on the questions of negligence and proximate cause. The plaintiff testified:
“As the locomotive and tender went around this curve onto track 3 the cab and coal tender were swaying and rocking a lot up and down and sideways, the tender one way and the cab the other, and then up and down as they hit these low joints.
“As we got around the curve I put my knee on the water tender and my hip on the cab of the engine and I held myself out, my arms straight out, ánd was watching for the signals back of it around that curve, and as we got around that curve, why, the swaying and rocking of it pinched my right knee and my right hip between the cab and coal tender.”
In my opinion, the instant case, weak as it is for the plaintiff, is stronger than the case made by the plaintiff in the Eglsaer case. There, we held that the District Court erroneously diiected a verdict in favor of the defendant. In the instant case the lower court is to be reversed for its refusal to direct a verdict. While I agreed to the decision in the Eglsaer case with reluctance, I think that consistency requires that I hold for the plaintiff in the instant *98case. Especially is this so in view of my belief, ás stated, that the facts of the instant case are more favorable to the plaintiff than they were in the other case.