dissenting:
The issue in this case is: shall a jury or a court decide whether petitioner lost his eye through the respondent’s negligence? I agree with the Court that the shipowner was liable for the negligence of its doctor, and I agree further that the Jones Act is not a workmen’s compensation act and does not impose liability without fault; but I do not agree that a court may substitute its judgment on the facts for the decision of a jury when, as here, there is room for reasonable difference of opinion on the critical issue of the case. I think there was sufficient evidence to permit a jury to find negligence in the doctor’s failure to leave the petitioner at Honolulu for hospital treatment.
The evidence showed that this seaman sustained an injury so serious that it resulted in the eventual removal of his eye. When a seaman is injured, the shipowner has an imperative obligation to come to his aid;1 and the shipowner’s responsibility is so heavy that he may be found negligent for failure to take his ship to the nearest port in order to provide adequate treatment.2 There is a simular obligation to leave a seriously injured seaman in a *673port at which a vessel has arrived.3 This duty of course exists where no adequate treatment can be given on the ship. Here the ship’s doctor was not an eye specialist; the ship did not have aboard the medicines which competent physicians in San Francisco applied; and there was no X-ray although one was later found essential for diagnosing the ailment. It is not surprising that the ship should lack these facilities, for every merchant vessel cannot be a floating hospital; but it is for this very reason that a ship is required to furnish shore treatment for seriously injured seamen.
The United States Marine Hospital in Honolulu had all the facilities which the ship lacked. These hospitals are recognized government institutions and a seaman has no burden to prove that the equipment and treatment in the hospital would have been better than the equipment and treatment on the ship. Here, as in Leone v. Booth Steamship Co., 232 N. Y. 183, 185, 133 N. E. 439, “It is to prefer shadow to substance to make the result of this action depend on affirmative proof of this matter.”
What was the evidence on which the jury could have found that the seaman should have been left for treatment in this hospital? The petitioner’s eye began to pain him as a result of an accident on June 3, 1940. By 7 o’clock the next morning, the eye was in such condition that he required medical treatment from the ship’s doctor and was released from duty. At 5 o’clock that afternoon the vessel docked at Honolulu. The ship’s doctor sent him to the Marine Hospital, which was closed at that hour, and he went to Queens Hospital which, according to the evidence, is an emergency institution connected with the Marine Hospital and which takes care of patients *674temporarily. The doctor at Queens Hospital advised the petitioner that he should be released from his vessel and enter the hospital at once. This physician advised the seaman that he might lose his eye if he returned to the ship.
The petitioner returned to his vessel at 6 P. M. but was unable to see the ship’s doctor until 11:30, approximately 30 minutes before the vessel sailed. He repeated to the ship’s doctor the advice given him ashore. The seaman testified that the doctor told him that no danger would result from returning to San Francisco, and, since the doctor was his superior officer and an “accredited physician,” he relied upon the doctor’s advice although he was suffering intensely.
The petitioner’s eye grew worse, treatment in the San Francisco Hospital failed to cure it, and it was removed. Two San Francisco specialists familiar with his case testified that they would have advised that he be left in Honolulu for hospital treatment. True, we have no testimony that the eye would have been saved by hospitalization at Honolulu, and whether it could have been will never be known; but it is clear that the petitioner would have received excellent treatment at an earlier date than he did. Adequate treatment, of course, is usually aimed at curing or alleviating the serious consequences of injuries and diseases, and timely treatment can prevent progressive physical deterioration. Someone must decide whether such happy results would have followed earlier hospitalization in the instant case.
Directing a verdict against the petitioner in this case is substituting judicial for jury judgment on factual questions which can as readily be decided by the layman as by the lawyer. When we consider the weight of the evidence and resolve doubtful questions such as these, we invade the historic jury function. “The right of jury trial in civil cases at common law is a basic and fundamen*675tal feature of our system of federal jurisprudence which is protected by the Seventh Amendment.” Jacob v. New York City, 315 U. S. 752. This constitutional command should not be circumvented.
Me. Justice Douglas and Me. Justice Murphy join in this dissent.Harden v. Gordon, 2 Mason 541; Reed v. Canfield, 1 Sumner 195.
The Iroquois, 194 U. S. 240, 242.
The United States guarantees the cost of maintenance and return to the United States of injured seamen discharged in foreign ports. 46 U. S. C. § 683.