dissenting.
At the opening of a Term which finds the Court’s docket crowded with more important and difficult litigation than in many years, it is not without irony that we should be witnessing among the first matters to be heard a routine negligence (and unseaworthiness) 1 case involving only *333issues of fact. I continue to believe that such cases, distressing and important as they are for unsuccessful plaintiffs, do not belong in this Court. See dissenting opinions in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, at 524, 559.
The District Court, finding that the evidence presented no questions for the jury, directed a verdict for the respondent. The Court of Appeals, in an opinion which manifests a conscientious effort to follow the precepts of the Rogers case, unanimously affirmed, after a painstaking assessment of the record. 271 F. 2d 194. My own examination of the record and of the opinion of the Court of Appeals convinces me that there is no warrant for this Court overriding the views of the two lower courts.
The core of petitioner’s case was the condition of the wrench, his unsafe-place-to-work theory having evaporated in thin air, as the Court recognizes. Having had to abandon his original theory that the claw of the wrench had defective teeth (since the wrench was toothless), petitioner testified (1) that the instrument was an “old beat-up wrench ... all chewed up on the end" (whether at the claw or handle does not appear); and (2) that the wrench had slipped off nuts at various times during the operation (albeit petitioner had before the accident successfully removed some 15 out of 20 nuts without mishap).
While the Court, in stating that “there was no direct evidence of play in the jaw of the wrench,” seems to recognize that this testimony did not suffice to show any actionable flaw in the wrench, it nonetheless concludes that the jury should have been permitted to infer one, in light of two other factors. These are (1) the second mate’s testimony that as of some 10 days before the accident,2 the *334tools in the pumproom toolbox “had been very beaten and battered” (whether at the claw or handle, or anywhere else, does not appear); and (2) other evidence which, as I read its opinion, the Court takes as establishing that the tools were old and infrequently inspected. (Actually the record shows that the tools had been used only four or five times and that the wrench had been inspected just before it was handed to petitioner.3)
Judged by any reasonable standard this evidence, frag-mentized or synthesized as one may please, did not in my opinion make a case for the jury. The additional factors on which the Court relies add nothing to the inherent deficiencies of petitioner's testimony which the Court seems to recognize did not of itself make out a case of either negligence or unseaworthiness. If it is permissible for a jury to rationalize “into being” a defective wrench from this sort of evidence, then wrenches have indeed become dangerous weapons for those operating vessels on the Great Lakes. If the rule of Rogers means that in *335FELA cases4 trial courts are deprived of all significant control over jury verdicts, and juries are in effect to be allowed to roam at large, I think the lower federal courts should be so told. See Harris v. Pennsylvania R. Co., 361 U. S. 15, 25 (dissenting opinion). At least this would be better than continuing to require the lower courts to operate in what must be an atmosphere of increasing bewilderment over what is expected of them in these federal negligence cases.
I would affirm.
See note 1 of the Court’s opinion, ante, p. 326.
The exact date of the accident is obscure. Petitioner did not report the alleged accident for some six months after he claimed it *334occurred. The then master testified with respect to the filling out of the company accident form:
“Q. How did you arrive at the date of December 28, 1955?
“A. Well, it was merely an arbitrary date. It was kind of hard to reckon back at the time this [the form] was made up. This was made up on the 1st of April following. This may have been any time in December. It may have been the 21st, it may have been any time during that period. . . .
“The Court: That is the date plaintiff gave. Were you on the vessel on that day, December 28?
“The Witness: Not to my recollection, sir, but when we typed this up Mr. Michalic, the plaintiff, gave me that as the approximate date. He didn’t really know exactly when it would have been.”
The pumpman, whom petitioner was helping, testified that the wrench used by petitioner was one of three that had been procured four or five years before; that they were used only once a year; and that he had inspected the wrenches just before taking them out of the tool chest on the day in question.
The Jones Act, here involved, incorporates the standards of the Federal Employers’ Liability Act.