(dissenting).
I would reverse and order the verdict of the jury set aside. On the ground that the plaintiff’s injury was solely caused by his own negligence the railroad moved at the close of the plaintiff’s case for a non-suit, at the close of the en*535tire case for a non-suit and directed verdict, and after verdict moved to set the verdict aside and to have judgment entered for the defendant notwithstanding the verdict. Obviously the proofs in this case do not “justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * * for which damages are sought.” Rogers v. Missouri Pacific Railroad Co., 1957, 352 U.S. 500, at pages 506-507, 77 S.Ct. 443, at page 448, 1 L.Ed.2d 493.
The majority’s summary of the trial evidence demonstrates this failure of proof. I enlarge their statement merely to point out that at the time of the accident plaintiff had been employed by the railroad as a machinist for thirty years (plus four years prior to that as a machinist’s helper), that for nine years the railroad had used diesel engines, and that for nine years plaintiff’s duties were to do all mechanical work on them. Therefore, plaintiff was not unacquainted with diesel mechanisms, and he certainly must have known the springing power of a compressed coil spring. Upon appeal the plaintiff has held his verdict by convincing a majority of the court that the defendant was negligent in failing to inform him, then a railroad mechanic of thirty-four years’ experience, that, in order to cushion the shock of coupling, there were powerful coiled springs in the gear assembly here required to be examined; and that, when a powerful coiled spring gets stuck in a compressed position it is dangerous to insert a steel jimmy bar between the compressed coils because the compressed coils, when released, will spring back at the bar with enough pressure to endanger the workman who inserted it.
This “failure to warn” is the sole alleged ground of carrier negligence which my colleagues find worthy; and indeed is the only alleged ground plaintiff relied upon on the appeal. Surely the question of whether the failure to so warn this plaintiff was in the slightest degree railroad negligence proximately causing this accident should not have required any factual determination!
The basis of recovery under the Federal Employers’ Liability Act is negligence, and the railroad is not an insurer of the safety of its employees. Unlike the situation under other statutes the fact of injury on the job does not by itself alone create employer liability. The plaintiff has the burden of proof to prove some common-law employer negligence by a fair preponderance of the evidence. It seems clear here that plaintiff was injured solely by his own voluntary act, and by an industrial accident unforeseeable on the part of the railroad. The causative choices that led to plaintiff’s injury were all made only by him. Cf. Dessi v. Pennsylvania Railroad Co., 3 Cir., 1958, 251 F.2d 149, certiorari denied 1958, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1073; Barnett v. Terminal Railroad Association of St. Louis, 8 Cir., 1956, 228 F.2d 756, certiorari denied, 1956, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476.