(dissenting).
The driver of the truck, Rodriguez, admitted on cross-examination that for seven years he had known people customarily walked across Canal Street above this intersection to catch the street cars (Record ps. 57, 58) ; that at the time of the accident the light at the’ intersection was red and traffic had stopped in all lanes other than the inside lane in which he was driving (Records ps. 52, 58); that because the cab of his truck was elevated higher he could see further than anyone riding in a passenger automobile (Record p. 62); that “traffic was heavy” (Record p. 61), the pavement was wet (Record p. 53), and there was a “pretty good drizzle" or rain falling at the time (Record p. 50); that the windshield wiper in front of the driver’s seat on the left side of -the truck cab was working, but he did not remember whether there was a windshield wiper on the right side of the windshield, from which direction plaintiff approached (Record p. 52), -although he had previously testified on direct examination that he had driven this same truck “regularly about three or four years”. (Record p. 50). The jury was not bound by his testimony that he was driving only “ten to fifteen miles an hour” at the time of the accident (Record p. 46) and moved only “about seven feet” afterwards (Record p. 60), for the photographic exhibits in evidence clearly reveal that the truck traveled fully its own length plus about eight additional feet past the point where the driver, Rodriguez, indicated the plaintiff was hit. (Record p. 60 and Exhibits.) The driver further admitted that he almost struck the side of the United Cab in front and to the right of his truck after the accident (Record p. 54) and one of the photographs reveals that he was “trying to keep from hitting the cab”, as he testified (Record p. 55), by turning his front wheels toward the neutral ground before finally bringing the truck to a halt. Finally, although from his vantage point in the elevated cab of the truck Rodriguez did not see the plaintiff until she “run right into my truck” (Record p. 46), the plaintiff’s eight-year old niece, Alvis, who was holding onto the back of plaintiff’s dress and following her immediately before the accident, testified that she saw the truck. (Record p. 42.)
Taking into consideration all of the facts and circumstances, it seems to me that there was substantial evidence to support a finding that in the exercise of due diligence, defendant’s driver should have discovered plaintiff’s peril in time to avoid the injury *499and death. The district judge, if he thought the verdict wrong or against the preponderance of the evidence, might grant a new trial; but when there was some substantial evidence to support the jury’s verdict, neither the district judge nor this court should direct the entry of a judgment notwithstanding the verdict.
I, therefore, respectfully dissent.
Rehearing denied; RIVES, Circuit Judge, dissenting.