(dissenting in part).
I do not express dissent from most of the opinion of the court. As to the liability of the coal company, I think it is probably true, from the state court decisions referred to in Judge WOOD-BURY’S opinion, that the Supreme Judicial Court of Massachusetts would probably say, on the facts presented in this case regarding the liability of the coal company, that there was not enough evidence of negligence to be submitted to a jury, and that, therefore, a trial judge should direct a verdict for defendant.
But is this a matter of “substance” or “procedure”, within the test of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188? This seems to me to be not an easy question. Though I do not dissent from the conclusion reached by the court, I want to say that I reserve judgment on this point, and will feel free, in another case, to determine the issue after .full argument.
We have many times pointed out that, though the preliminary function of the trial judge in these cases is sometimes spoken of as the determination of a “question of law” (because the decision is made by the judge), what he is really called upon to do, in the traditional division of functions as between judge and jury, is to exercise a preliminary judgment on the facts; to say whether, in his judgment, the conclusion to be reached as to the existence of negligence is sufficiently debatable, on the facts, so that a reasonable jury of twelve men might rationally decide that the defendant had done a negligent act. See Channell v. Sampson, 1 Cir., 1939, 108 F.2d 315; Marshall v. Nugent, 1 Cir., 1955, 222 F. 2d 604, 611, 58 A.L.R.2d 251; New York, New Haven & Hartford R. Co. v. Dox, 1 Cir., 1957, 249 F.2d 572, 573. See also Smith v. Reinauer Oil Transport, Inc., 1 Cir., 1958, 256 F.2d 646, certiorari denied 1958, 358 U.S. 889, 79 S.Ct. 133, 3 L.Ed.2d 117.
In the case at bar, there is no difference between the state and federal courts as to the substantive rule to be applied— the defendant is liable if he has proximately caused harm as the result of a negligent act. So, the standard to be applied is the same, the care of a reasonable man under like circumstances. Also, the state courts have determined that there may be liability for negligence on the part of a more remote actor, when he sets up an undue risk through negligence in failure to take account of the propensities of meddling children, even though the harm is more immediately caused by the intervening act of such meddlesome children.
Under these circumstances, when a negligence case gets into federal court by virtue of diversity of citizenship, it might be said that, despite Erie R. Co. v. Tompkins, the federal court, applying the state-created rules of substantive law, should determine the issue of negligence in accordance with its historic division of functions as between judge and jury, without looking over its shoulder to speculate whether a state court, on these same facts, would direct a verdict for the defendant. Cf. Byrd v. Blue Ridge Rural Electric Co-operative, Inc., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953; Dice v. Akron, Canton & Youngstown R. Co., 1952, 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398.
I do, however, dissent from so much of the court’s opinion as holds that the terms embodied in the free pass do not result in exempting the railroad from liability for negligence, if any, of its servants. I am unable to see how it can be said that, under the circumstances here related, the employee was within the exception stated in the pass as being engaged in the “performance of service required by the user’s employment by the *183Company”. In fact, in Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950, much relied on by the majority, there occurs (at p. 957) the following important statement (emphasis added):
“The record in this very case discloses that, at a former time when the plaintiff was resident in Newark, his services as a train dispatcher were utilized by the railroad in Philadelphia between which place and his home he travelled back and forth on his pass. In so travelling, he was not performing the service for which he was employed and, therefore, had no right of action as an employee for any injury received in the course of travel.”
So far as any requirement by the railroad was concerned, the employee was not “required” to ride from Providence to Boston on the railroad. All the railroad “required” was that Johnson present himself for work at the appointed place and time; his travel was no “service”. He would have been free to stay at a hotel in Boston or he might have driven to work in a private car or taken a bus. The railroad received no additional benefit from Johnson’s having chosen to ride the train that particular morning, and hence I do not see that it should be required to bear any increased risk. It seems strange that, whereas the railroad would not have owed him anything more in the way of compensation nor would have been responsible for his safety in walking across the street or riding the subway, driving, or taking the bus, it should be liable to him in this case. If Johnson had been riding to inspect the work of the train crew or had been “deadheading” between working runs, pursuant to a work assignment, he would have been in “performance of service required” by his employment, but this is neither of those cases.
Assuming, as seems clear to me, that the plain purport of the language of the pass indicated an intention to exempt the railroad from liability for negligence (with the exception noted above), I have no doubt that such exemption cannot be held to be either against public policy or against any provision of the Hepburn Act, 49 U.S.C.A. § 1(7). In that respect I am content to rely upon the argument by Biggs, Ch. J., dissenting in the Sas-saman case, supra. This pass was no more a thing of value to the employee, perhaps in lieu of additional wages (or no less gratuitous), than, for example, a pass for his family. See Kansas City Southern Ry. Co. v. Van Zant, 1923, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348.
Accordingly I would reverse the judgment against the defendant railroad.