(dissenting).
The case is a close one but, in my opinion, the question of Appellee’s contributory negligence was one for jury decision. Undoubtedly, the jury would have been warranted in holding that Appellee was negligent, but we have no right to invade the jury’s function even though we believe it might better have reached the opposite result. The federal rule governs and it is thus stated in a quotation taken by this court from a decision of the Supreme Court: 1
“ ‘The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.’ ”
Where Appellant’s negligence is as palpable as it is here I am not able to say, under the facts of this case, that reasonable men might not have concluded from all of the facts and circumstances that Appellee was not guilty of such negligence as would bar his recovery. I would affirm.
. Lowry v. Seaboard Airlines R. Co., 5 Cir., 171 F.2d 625, 630, quoting from Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, at page 417, 12 S.Ct. 679, 36 L.Ed. 485.