(dissenting).
I would reverse the judgment on the ground that the trial court’s finding of no negligence is contrary to the evidence and is thus clearly erroneous. This disposition of the appeal would necessitate a remand for the purpose only of determining the amount of appellant’s damages, a determination that can readily and promptly be made on the basis of the existing record.
The holding of my associates is that if the trial judge believed the testimony of the only eyewitness, Donald Hubbard, then his finding of no negligence would be clearly erroneous. I experience no difficulty in agreeing with that holding, but I do have trouble with the “iffy” qualification it embodies. To me the record affords no ground for believing that the judge discredited Donald’s account of the occurrence. Donald was summoned as a witness by the United States, was interrogated by its counsel, and testified on its behalf. In effect, the government vouched for him. In its brief on this appeal the government relies entirely on Donald’s testimony as supporting its claim that the finding of no negligence was correct and should be allowed to *9stand. Itfi brief summarizes Donald’s testimony, with appropriate references to the record, in the following language:
“The only eyewitness to the accident, Donald Hubbard, testified that he saw David Irish hanging on to the right side of the truck just in front of the back wheel. That as the truck started David fell down and the wheel rolled over him. That after the right wheel ran over David Irish, he rolled and was not lying in back of the right rear wheel. There is no testimony to refute the eyewitness’ account that the right rear wheel ran over David Irish. The driver stated that he thought, because of the jolt, that it was the left rear wheel that ran over David Irish, although in all probability it might have been the right wheel. As any operator of a motor vehicle has experienced, it is most difficult to tell by feel which of the rear wheels of his vehicle has run over an object if such object was not observed. Thus, the testimony of the eyewitness, Donald Hubbard is unrefuted. It is to be thus noted that David Irish was out in the street on the right hand side of the truck and thereby on the side opposite to that upon which the driver entered.”
On the basis of this summary the government insists here, as doubtless it did below, that its postman was free of negligence in driving off as he did, inasmuch as the little Irish child was clinging to the right side of the mail truck in a position where he could not be seen by the driver when the latter returned to the truck. Presumably the district judge was persuaded by this argument and accordingly made his finding of no negligence. To me, our problem is as simple as that.
The government’s summary accurately reflects Donald’s account of the occurrence as it appears in the record. However, I do not at all agree with the government’s argument on the legal point that the driver exercised due care in the circumstances. The California decisional law is all to the contrary. Apparently my associates take the same position. They say: “If the trial court accepted Donald Hubbard’s testimony to the effect that David was hanging onto the right rear side of the truck and when it started David fell and was hit or run over by the truck, then the court should have held that Smith was negligent in not making a more careful search as to David’s whereabouts before setting the machine in motion. In short, if the trial court was satisfied with Donald’s testimony, then we are of the view that the finding of no negligence is clearly erroneous.”
But my brothers appear to have become lost in a search for difficulties which the record does not in reality present. They say, “we have the unanswered question as to whether David was on Donald’s side of the street and ran over to the truck, or whether he was waiting by the truck all the while.” Yet in their holding above quoted they recognize that Donald’s testimony, if accepted, gives the answer to that “unanswered” question. Thus the so-called unanswered question appears to relate, not to the sufficiency of Donald’s testimony, but rather to some doubt as to whether or not the judge believed it.
I desire not to be unfair with my associates. While there is no apparent reason to believe that the judge discredited Donald’s testimony, the record does afford grounds for surmising that the judge misunderstood what the boy was trying to tell him. Midway of Donald’s testimony the judge took him in hand and posed leading and suggestive questions to him, thereby putting in his mouth language obviously inconsistent with the whole tenor of the boy’s account given both before and after the judge had taken over — at a time, so to speak, when the witness was on his own. An illustration of this is seen in an excerpt quoted in the majority opinion. The genesis of the judge’s misunderstanding, if any there was, is to be found in an answer to a’ question earlier put to the boy in the course of his examination by the United *10States attorney. I quote from the record:
“Q. Now, before the truck left did you see little David? A. Yes, I did.
“Q. Just tell us where little David was and what happened? A. Well, he was on the side of the street, on the side of the truck that our house was on, and the truck started to turn out so it could miss the Carters’ car, and David fell down and the wheel rolled over him.
“Q. Now, Donald, when you saw David you say he was by the truck? A. Yes.
“Q. Was he near the front wheel of the truck or was he near the back wheel of the truck? A. Well, he was near the back wheel.
“Q. Now, do you remember the truck had a door on it? A. Yes.
“Q. Where was he with relation to the door?
******
“A. Between the door and the wheel.”
It will be noticed that in the boy’s answer to the second question he misspoke in referring to “the side of the street,” and immediately corrected himself by saying the child was “on the side of the truck that our house was on.” I quote the testimony at some length primarily to indicate how and where the possible misunderstanding of the trial judge arose. But the excerpt is helpful for other purposes as well. In commenting on this witness, the majority opinion states that “his testimony leaves much to be desired in the way of clarity.” However, the passage above is typical of the boy’s testimony almost throughout, and to me it indicates a clarity of thought and expression beyond that of the generality even of adult witnesses.
It seems to me that the duty of this court is clear. It should decide the litigation, not prolong it indefinitely on speculative considerations. If we are satisfied, as we appear to be, that on the basis of the only eyewitness’ testimony negligence on the part of the government’s agent was shown, then we should reverse and remand merely for the assessment of damages. The disposition of the case ordered by the majority will in all likelihood result in a second trial, very probably before a different judge, with all the delay and expense necessarily attendant upon such procedure. This accident occurred in March of 1952 and the judgment in favor of the United States was entered in July 1953. Two years have since elapsed. We can not hope that on a second trial a clearer record than the one presently before us will emerge, or even a record half so clear as this one is. With the passage of so long a time memories of the facts concerning this tragic incident will fade, witnesses may be dispersed or rendered unavailable through death or for other reasons, and thus once more the adage that “justice delayed is justice denied” may well find confirmation.