(dissenting).
I am not in accord with the reversal by this court of the judgment entered in the District Court on the verdict of the jury. I think there is substantial evidence to support the verdict and that the judgment entered thereon should be affirmed.
The opinion of the majority of the court fails, in my view, to apply the established principles stated in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, that the function of the appellate court is exhausted when the evidentiary basis for the verdict of a jury becomes apparent, “it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”
This principle was reiterated by the Supreme Court in Myers v. Reading Company. 331 U.S. 477, 485, 486, 67 S.Ct. 1334, 91 L.Ed 1615, wherein, in a unanimous opinion, the judgment entered for defendant non obstante verdicto was reversed. Again, in Wilkerson v. McCarthy, 336 U.S. 53, 55, 69 S.Ct. 413, 93 L.Ed. 497, the Supreme Court adhered to and applied the doctrine of Lavender v. Kurn. See also opinions of this court which did likewise. Highfill v. Louisville & Nashville R. R. Co., 6 Cir., 154 F.2d 874; Pennsylvania R. R. v. Goldie, 6 Cir., 182 F.2d 9, 11; Pennsylvania R. R. Co. v. Roth, 6 Cir., 163 F.2d 161, 165; Hutchins v. Akron, Canton & Youngstown R. Co., 6 Cir., 162 F.2d 189, 192; Keith v. Wheeling & L. E. Ry. Co., 6 Cir., 160 F.2d 654. It may be well to cite carefully developed opinions from two other courts of appeals, applying the doctrine. Reck v. Pacific-Atlantic S. S. Co., 2 Cir., 180 F.2d 866, 868; and Fritz v. Pennsylvania R. R. Co., 7 Cir., 185 F.2d 31, 34.
Even if it were not for the pronouncements in Lavender v. Kurn, there would be, in my judgment, controlling opinions of the Supreme Court clearly indicating that the judgment in the instant case should be affirmed. See Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coastline R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; and Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.
This dissenter desires again to express his firm individual juristic conviction that the courts should be most careful not to substitute their reasoning for that of the jury in determining the issue of the proximate cause of an accident. In my view, it fell within the scope of the jury, on the evidence of record in this case, to determine this issue finally, there being, in my judgment, substantial evidence to support the conclusion of the jury.