(dissenting in part).
In Rogers and the decisions following it the Supreme Court has been careful to clearly define the required minimum proof to take a plaintiff’s Federal Employers’ Liability case to the jury. A fair, full statement of the evidence here demonstrates that this plaintiff’s proofs do not reach the Rogers standard. Therefore no justification exists to reverse the district court judgment. Under the guise of Rogers, but in reality discarding its entire base, the majority restores the jury verdict. In so doing it abandons the necessity of plaintiff presenting evidence from which the jury may conclude that negligence of the railroad played some part in causing the injury. Enforcement of the Rogers rule does not mean that evidence of an ordinary working sequence, absent employer negligence and plus a claimed ordinary injury, calls for jury decision in a Federal Employers’ Liability suit.
Plaintiff has appealed first from the trial court’s holding that the evidence was insufficient to have carried the case to the jury. In determining the sufficiency of the evidence of course the trial court and this court both must regard the evidence in the light most favorable to the plaintiff. Gold v. Groves, 3 Cir., 1950, 182 F.2d 767.
From the evidence it appears that plaintiff worked as a passenger car repairman at the Elizabethport facilities of defendant. On the afternoon of February 25, 1954 he was directed to do some riveting, assisted by another workman. This work entailed the placing of three rivets on the endstep of a baggage car, the step being for the use of brakemen engaged in switching cars. The step was a U-shaped frame, the ends of which fastened to the bottom of the car so that the base of the U formed the step. Another step was formed higher up by riveting a cross bar between the arms of the U, parallel to the base. To the center of this second step was to be riveted one end of a brace angling out *106and down from where its other end was attached further under the bottom of the car.
There is doubt as to whether the first two rivets placed by the two workmen were those which fastened the higher step to the U-shaped frame or whether they were the ones fastening the frame to the car, in which case the second step would already have been riveted to the frame. Resolution of this uncertainty however is not material; at any rate it is certain that the third and last rivet was the one fastening the angled brace to •the center of the higher step. The car was on its trucks which placed this step about 34" off the ground. Consequently, in order to do the job plaintiff had to get down low to look upward while applying the twenty-five pound rivet gun and accompanying force upward to the underside of the step. This position was necessary whether plaintiff was underneath the car itself leaving the helper on the outside, or was on the outside with the helper consequently under the car, or even if both plaintiff and his helper were on the outside of the car.
During the period of about a minute when plaintiff was crouched on one of his heels with the other leg extended and was bending over to one side so as to look at the underside of the step while performing the riveting, he felt a pain in his back. Upon completing the job he crawled out from under the car, holding his back. He told the foreman he thought he had “a cold in the back”, and did no other work that day besides putting away tools.
The next day, Friday, he went to work but did little because of the continuing backache. He spent much of the ensuing weekend in bed, but on Monday morning the pain was so much worse that he could not go to work. He sought and received medical treatment that day and had been under doctors’ care more or less continuously down to the date of trial four years later. The condition was diagnosed as the protrusion of an intervertebral disc which caused muscular contracture and nerve irritation and left scar tissue after the disc receded; the continuing condition renders him unable to do the crouching, crawling, climbing and lifting required by his job classification although he has been able to work for fairly long stretches at the lighter tasks of welding and burning. Whenever heavier work was attempted his condition worsened.
I agree that the inference most favorable to the plaintiff is that he sustained the injury because he bent sideways from an already deeply crouched position, twisted his body somewhat in order to look up, and then held the rivet gun in place from this position, at the same time exerting an upward force against the recoil of the tool. It is inferable that this awkward working position was assumed because the car rested on its trucks and because it did not occur to the plaintiff to do the work from any other position.1 Compare Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. However, this does not dispose of the case for we are thereby only brought unavoidably to the question which the trial court did not pass on directly. That question is whether there was sufficient evidence to permit the jury to find that defendant had in fact been negligent.
The test prescribed by Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 506, 507, 77 S.Ct. 443, 1 L.Ed.2d 493, and consistently applied by the Supreme Court2 for ascertaining the propriety of *107directing a verdict for the defendant in F.E.L.A. cases is whether the plaintiff has failed to produce any evidence from which the jury may conclude with reason that employer negligence played some part in producing the injury. This court has not understood the Supreme Court’s pronouncements to require abrogation of the judicial function of assessing the evidence for sufficiency in supporting a verdict in plaintiff’s favor.3
A finding of employer negligence in this case would depend upon whether the defendant, by directing plaintiff to perform the riveting, under the circumstances caused or created an unreasonable risk of harm to the plaintiff.4 The unreasonableness of the risk of harm seems in turn properly to depend upon the foreseeability to defendant of the risk at the time plaintiff was directed to perform the riveting.5
Pertinent to the determination of foreseeability in this case are the surrounding circumstances. These included the fact that plaintiff was a skilled workman who knew how to use a rivet gun and who had riveting experience, though he had performed no riveting in some twelve or thirteen years prior to this time. His earlier experience had been with a rivet gun smaller than the one here used which, however, was identical except for the larger forces involved in its operation. Crucially important to the question of foreseeability of the type of harm which occurred6 is the fact that plaintiff frequently worked from a crouching position underneath cars with a variety of tools requiring greater or less exertion. His work and that of his co-workmen often entailed heavy lifting. It appears that although this particular job was probably done more often with the car up on benches it was at least occasionally done while the car rested on its trucks. There is no evidence in the case of injuries of any kind sustained by personnel who had previously performed this particular task, either while the car was on benches or on its trucks.7 Also *108to be considered is the fact that the riveting took only a few minutes, while the job of placing the car up on benches would have required several hours.8
The factors just discussed all bear on the likelihood or unlikelihood of anticipating harm to the plaintiff arising from whatever bodily position was selected. But additionally it is to be remembered that nothing dictated the plaintiff’s assuming the position he did for performing the work. His foreman was surely justified in leaving to plaintiff’s discretion selection of the body position he would take for doing the work. For the skilled workman accustomed to heavy work and handling weighty tools this would be pretty much a matter of personal convenience. The man who did most of the riveting testified that whenever he did the job of riveting the end-step while the car was up on benches, he placed his foot on a stool and rested the gun on his knee; when the car was down on trucks he sat on a block. Pictures in evidence show a kneeling workman performing the riveting job. In any case it is necessary for the workman to bend over sideways to some extent.
In light of all the facts surrounding the occurrence of this accident it is plain that injury to the plaintiff from the very handling of the tool used in doing the job could not have been foreseen by the defendant. Under the circumstances there was no unreasonable risk of harm to the plaintiff; the proofs do not “ * * justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * Rogers v. Missouri-Pacific R. Co., supra [352 U.S. 500, 77 S.Ct. 448]; see Herdman v. Pennsylvania R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508. In that situation the judgment of the district court should be affirmed.
The second branch of this case concerns the allowance of a contingent new trial by the district court. Under the present facts such action was within the fair discretion of the trial judge.
. Of course, it is also inferable that even had the car been up on benches the injury might nonetheless have occurred.
. Moore v. Terminal R. Association of St. Louis, 1958, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25; Ferguson v. St. Louis-San Francisco Ry. Co., 1958, 356 U.S. 41, 78 S.Ct. 671, 2 L.Ed.2d 571; Honeycutt v. Wabash Ry. Co., 1958, 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380; Stinson v. Atlantic Coast Line R. Co., 1957, 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93; Gibson v. Thompson, 1957, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1; McBride v. Toledo Terminal R. Co., 1957, 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Ringhiser v. *107Chesapeake & Ohio Ry. Co., 1057, 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; Arnold v. Panhandle & Santa Fe Ry. Co., 1957, 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed. 2d 889; Thomson v. Texas & Pacific Ry. Co., 1957, 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722; Deen v. Gulf, Colorado & Santa Fe Ry. Co., 1957, 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Futrelle v. Atlantic Coast Line R. Co., 1957, 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Shaw v. Atlantic Coast Line R. Co., 1957, 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Herdman v. Pennsylvania R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508; Webb v. Illinois Central R. Co., 1957, 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed. 503.
. Wergin v. Monessen Southwestern Ry. Co., 3 Cir., 1958, 258 F.2d 806; Dessi v. Pennsylvania R. Co., 3 Cir., 1958, 251 F.2d 149; Compare Gibson v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 1957, 246 F.2d 834; but see 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 for Mr. Justice Frankfurter’s comment on the Supreme Court’s denial of certiorari in that case.
. See Restatement, Torts § 282; 2 Harper and James, Torts § 16.9 (1956); Prosser, Torts § 30 (2d ed. 1955).
. See Restatement, Torts § 284; 2 Harper and James, § 20.5; Prosser, §§ 30, 48.
. To be distinguished from the question of foreseeability analyzed by this opinion is the separate, and to this case, irrelevant, foreseeability of harm to anyone (including the operator) caused by the improper active or primary use of the rivet gun by one with no prior or sufficiently recent experience. Here we are properly concerned only with the foreseeability of harm incident or secondary to the active use of the tool — that is, harm arising from the mere handling and positioning of the rivet gun.
The distinction is illustrated by the relative foreseeability of injury by gunshot wound to those around a young boy to whom a firearm ready for firing is handed, and the foreseeability of injury occurring as a result of the youngster’s dropping the gun onto a bystander’s foot. Restatement, Torts, § 281, Illus. 2; 2 Harper & James, § 18.2.
. Cf. Cahill v. New York, New Haven & Hartford R. Co., 2 Cir., 1956, 236 F.2d 410.
. Cf. 2 Harper and James, § 16.9; Prosser, § 30.