(dissenting).
The plaintiff testified as follows: He had been “peeking around” the side of the last railroad car to see whether the moving trailer truck could clear the car. It was just as he turned back to face the other truck that he “was struck.” That truck, before it went into motion, was “three or four feet” from plaintiff. The jury could reasonably take the distance as four feet.
I think that the jury could reasonably infer (1) that, had defendant properly instructed plaintiff, he would have been so warned that, in the circumstances, he would not have “peeked around” at the moving trailer truck, but would have remained face-to-face with the other truck, and (2) that, had he done so, plaintiff, an *640able-bodied man aged 21, could and would have jumped out of harm’s way.
My colleagues’ opinion seems to me to amount to saying that, as a matter of judicial notice, such a man could not have jumped to safety when a truck, which had been stationary, four feet away, started in motion. With that position I do not agree. A truck cannot leap forward from rest like a greyhound or a modern sport-model passenger automobile. I think that we cannot hold that a jury acted unreasonably in believing that an agile young man could have rescued himself, had he been looking directly at the truck when it began to move towards him.
Nor do I agree that defendant must be exculpated because the truck driver’s conduct was criminally negligent or reckless. Since such drivers are part of the facts of life, as police records demonstrate, defendant owed plaintiff a duty to train him to take such behavior into account. Such an “intervening” factor does not exculpate in such circumstances.1
I assume, arguendo, that the inference needed to support the verdict would not suffice in a suit'not brought under the Federal Employees Liability Act. But the more recent Supreme Court decisions make it clear that, under that Act, the jury’s power to draw inferences is greater than in common-law actions. It is significant that the latest Supreme Court decisions, involving that statute, which my colleagues cite, are Bailey v. Central Vermont Railway, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, and Brady v. Southern Railway Co., 1943, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239. They neglect the following later decisions in which the Court, as is generally recognized, adopted a new attitude in F.E.L.A. cases: Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Jesionowski v. Boston & Maine R., 1947, 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Ellis v. Union Pacific R. Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lillie v. Thompson, 1947, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73; Johnson v. United States, 1948, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Affolder v. New York, C. & St. L. R. Co., 1950, 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683; Stone v. New York, C. & St. L. R. Co., 1953, 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441; Smalls v. Atlantic Coast Line R. Co., 1955, 348 U.S. 946, 75 S.Ct. 439, reversing 4 Cir., 216 F.2d 842.
My colleagues have also overlooked our decision in Palum v. Lehigh Valley R. Co., 2 Cir., 165 F.2d 3, 5-6, where, in a suit under the same Act, we said (per Judge A. N. Hand): “It is possible that in former times it would not have been regarded as negligent tó embark firemen upon such a service as that to which the plaintiff was assigned but, under the recent rulings of the Supreme Court, we cannot say that it was beyond reason for a jury to find that it was negligent to send the plaintiff on an unfamiliar route when firemen who were familiar with that route could apparently have been obtained without great difficulty. It would certainly have been safer to send a fireman over the route who was familiar with it and there was evidence indicating that this safer method, if not invariably practised, was generally employed. In such circumstances we think it was required by the recent decisions of the Supreme Court to leave to the jury the question of whether that safer method should not have been chosen.2 * * * The jury evidently thought that there ought to have been greater care exercised in selecting the crew and that if Palum had not been sent over a route when he was unfamiliar with the dangers he might encounter he would not have been injured. We cannot say that, such a view was without any substantial justification, and if not it was beyond judicial control however doubtful might be its- wisdom,” *641And see Korte v. New York, N. H. & H. R. Co., 2 Cir., 191 F.2d 86, 88, and Ruddy v. New York Central R. Co., 2 Cir., 224 F.2d 96, where we recognized that the Supreme Court had widened the permissible scope of jury inferences in F.E.L.A. litigation. See also Louisville & N. R. Co. v. Botts, 8 Cir., 173 F.2d 164, 166.
. See Restatement of Torts, Section 290
(a) and Comment b; Section 302(b) and Comments c, i and j; Section 447(a) and
(b) , Sections 448 and 449.
. Here Judge Hand cited many of the Supreme Court decisions I have cited above.