(concurring specially).
Agreeing with the reasoning of and the result announced in the opinion, I concur fully in it. In order, however, to pinpoint more precisely my reasons for disagreement with the appellee’s opposed view, I desire to state categorically that I agree with appellee that “Where it is reasonably certain that if a thing is negligently manufactured [or constructed] * * * that life and limb will be placed in danger, a duty of care exists even in the absence of privity and liability results in the case of persons injured by reason of such negligent construction * * * ”, but this agreement must be qualified by adding thereto these words from Judge Cardozo’s opinion in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A. 1916F., 696:
“It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of a contract * * *. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent.” (emphasis supplied.)
My difference with appellee arises, therefore, not out of the general statement or application of the rule but out of the state of the evidence here to which he seeks to apply it. In short, it seems clear to me beyond any question that under the evidence in this case, taken, as it must be, most favorably for the plaintiff, the jury could not reasonably find that the defendant had been proven negligent under the invoked rule.
Our attention has been called to no legislative enactment or decision of the State of Alabama which determines that the evidence here presented establishes a violation of the rule. The American Law Institute Restatement of the Law of Torts, Sec. 285, states the rule applicable here as follows:
“The standard of conduct of a reasonable man * * * (b) may be applied to the facts of the case by the trial judge or the jury, if there be no such legislative enactment or judicial decision.”
and in the comment which follows the section quoted, it is said:
“(e) Function of trial court. If there is no legislative enactment covering the circumstances of a particular case and there is no decision of an appellate court which establishes whether particular conduct is or is not negligent, a trial judge may withdraw a case from a jury whenever the jury could not reasonably find the defendant’s conduct to be negligent.”
As I understand it, the rule stated in the Restatement is the same in substance as the general rule in Alabama and in the Federal Courts concerning motions for directed verdicts. Under the proof in this case, considered from the standpoint as well of what the evidence failed to show as to what it did show, it seems quite clear that the jury could not reasonably have found: (1) that “danger was *420to be expected as reasonably certain” so as to bring the contractor within the rule imposing a duty of vigilance with respect to the particular length of particular screws to be used in the door handle; and (2) that if there was such a duty of vigilance, the contractor failed to discharge that duty. I know that it has become the fashion in some quarters to consider that a trial by jury means a trial by jury alone in which the jury determines not only what the facts are but whether they are sufficient as matter of law to make out a case. This is not yet the rule in the State Courts of Alabama, nor is it the rule in the Federal Courts of that state and this circuit.