(dissenting).
The truck of the defendant, weighing about 8500 pounds and loaded with dynamite, met and collided with the Chevrolet automobile of James B. Hood about early dark on a broad highway, and Hood was killed instantly. At the time of the accident, the truck was being driven by Stanley Johnson,- and two companions were sitting with him on the driver’s seat. The truck was running upgrade at the time of the collision, and the driver and his two companions testified that the truck was traveling on its extreme right side of the highway. The surface of the road at the scene was 34 feet wide, having on each side a concrete slab ten feet wide and a rock shoulder seven feet wide, of which shoulder a six-foot strip adjacent to the concrete slab was topped.
It becomes manifest, I think, that if the evidence of the three occupants of the truck was true .that the truck was moving on its extreme right side of the road, no accident could have happened, as in fact it did, near the marked center line of the highway. The jury was, therefore, warranted in discrediting the evidence of these witnesses.
*621The Chevrolet automobile which Hood was driving was hit on the side and the impact tore out the driver’s side of the vehicle and crushed Hood’s skull. Every physical fact indicated that the truck was traveling at a rapid rate of speed, and that after the impact the truck continued up the road about seventy-five yards, turning over one or more times and coming to rest on its wrong side of the road. Occupants of the truck were thrown from the cab, landing on different sides of the road. The place of impact on the body of the automobile, and the debris, oil spots, and marks at and to the left of the center line of the highway permitted a finding that the accident occurred near the center of the highway and on the truck’s wrong side of the road.
There is not one shred of evidence to be found in the record that Hood had been drinking. The bottle of liquor found broken in the car had an unbroken seal. It is without dispute that the neck of the bottle, with the seal intact, was found by the sheriff, a witness for the defendant.
James B. Hood’s version of how the accident occurred cannot be had, for death has sealed his lips. The jury was required, therefore, to consider the case on the evidence of the three occupants of the truck and the physical facts of the scene. The defendant’s witnesses said the truck was traveling on its extreme right side of the highway and that Hood turned into the truck, but the physical facts cast doubt upon their testimony. The jury heard the witnesses and observed their demeanor on the stand. The jury heard the evidence of the physical facts — the manner of damage to the car, and the location of debris, oil spots, and marks on the road. The jury weighed all the evidence and found that the physical facts spoke louder and truer than did the testimony of defendant’s witnesses. This court now takes the printed record and credits the testimony of witnesses for the defendant and brushes aside the considered verdict of the jury. In effect, the majority decides the case as if this court were a jury trying the case and weighing the evidence and drawing inferences therefrom for the first time. It is an “undue invasion of the jury’s historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from the one reached by the jury.” Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 744; Dixie Motor Coach Corp. v. Lane, 5 Cir., 116 F.2d 264; Liberty Baking Co. v. Kel-lum, 3 Cir., 79 F.2d 931.
I think the judgment should stand.
I respectfully dissent.