(dissenting).
I respectfully, but earnestly, dissent.
The Court both by what it does and what it says finds facts. While acting as a vicarious Louisiana court, it fails to heed the caveat so often sounded. This warning is that while it is true that where Erie leads, there must we go, in determining how much is Erie law, not non-Erie fact, great care must be taken to discriminate between what Louisiana judges declare to be legal principles and what they deem to be fact conclusions over which they entertain almost unlimited review. In the process the Court brushes aside a volume of evidence that the use of these tracks by itinerant strawberry pickers, or pickers-to-be, as a public wayfare was well known. In the analysis of the case, the Court then proceeds as though the presence of pedestrians was not to be anticipated. Consequently, it is not troubled by its fact finding that the engine crew was keeping a sharp lookout — although how a sharp lookout is kept by an engineer on one side, a fireman on the other, looking forward through the fog of a dark night to the leading end of the train some eighty feet away only dimly lit by a light unintended as a headlight, is equally unilluminating. It then proceeds to find the fact of how the accident happened by choosing one of the several causal descriptions set forth in the words of the plaintiff who, when asked to clarify the apparent inconsistencies, was muzzled by the amazing objection that the testimony was repetitious. Unless a party litigant must possess mental powers and memory processes more scientific and foolproof than other witnesses, one would think that just what version was the truth was for a jury to evaluate in terms of the ignorance or wisdom, understanding or behavior, physical or mental powers of the declarer in the light of occurrences, including severe trauma, which might affect recollection or capacity to now retell. After reaching the legal conclusion, on the basis of facts found by it, that there was no liability vel non on the part of the Railroad either from lack of primary negligence or by reason of contributory negligence on the part of the plaintiff, the Court then recirculates those findings to find some more facts cutting off discovered peril. This is all the more remarkable in view of the Louisiana “bouncing ball” theory of discovered peril which measures the Railroad’s obligation not in terms of the peril which it actually discovered. Rather, it is that which a prudent engineer operating a train on a dark, foggy night through a switch yard known to be a wayfare for pedestrians whose actual presence would not be revealed by the weak light, would have had, had the engineer actually known what he could have known — that the plaintiff was on the right of way apparently oblivious to the oncoming train. The question of which party — Railroad or plaintiff — last knew (or should have known) that the other would not be able to avoid the peril involves both physical events and phenomenon and a legal standard of evaluation in terms of reasonableness. We are neither jurors nor fact finders. Nor are we railroaders, strawberry pickers or pedestrians. Where we get the prescience *340to resolve these questions escapes me. I know only that we do not get it from the Constitution, and the Seventh Amendment is a stern .warning that we had better not try to acquire a competence by experience or experimentations. When it comes to applying the well accepted principle that appellate courts may determine that no reasonable mind could hold to the contrary, we are once again in the middle of a factual setting of controversy, uncertainty, dispute open to variable conclusions.
I.
Under the Erie1 2doctrine a federal court in diversity cases is merely another forum interpreting and applying state law.2 But as this Court has held, the Seventh Amendment to the United States Constitution preserving a right to jury trial applies to diversity eases the same as to others tried in federal courts.3 To that constitutional provision, Erie is subservient. This we have stated and restated, and now as recent as Revlon, Inc. v. Buchanan, 5 Cir., 1959, 271 F.2d 795, 800. “The quantity and quality of proof necessary to make out a case for submission to a jury in a federal court are determined by the Seventh Amendment to the Constitution of the United States, the Federal Rules of Civil Procedure [28 U.S.C.A.] and the decisions of the courts of the United States. White v. New York Life Ins. Co., 5 Cir., 1944, 145 F.2d 504; Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303; Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443; and Continental Casualty Co. v. Holmes, 5 Cir., 1959, 266 F.2d 269; and cf. Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed. 2d 935.”
The scope of the Supreme Court’s view on protection of jury trial in diversity cases is indicated by its recent decisions sustaining the sufficiency of evidence to support jury verdicts in cases in which federal courts had set them aside.4
In Byrd v. Blue Ridge Rural Elec. Coop., 1958, 356 U.S. 525, 536-539, 78 S.Ct. 893, 901, 2 L.Ed.2d 953, 962-963 the Court,5 while reserving decision on the constitutional law question of the extent to which the Seventh Amendment protects the right of jury trial in diversity cases tried in federal courts, spoke as follows :
“An essential characteristic of [the federal system] is the manner in which, in civil common-law actions, it distributes trial functions *341between judge and jury and, under the influence — if not the command— of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.”
II.
This Court also has focused on the problem facing a federal court in a diversity case applying decisions of the state courts of Louisiana where the common law jury does not obtain and Louisiana courts review the facts as well as the law in all civil cases.
“Federal courts are forbidden by the Seventh Amendment to re-examine any fact tried by a jury otherwise than according to the rules of the common law, while Louisiana state courts can review the facts in all civil cases. As a consequence of that situation, in civil jury cases federal courts evaluating decisions of Louisiana state courts as precedents have the difficult task of separating the decisions of the Louisiana courts on the law from the review of the facts.” Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303, 306. See also Gillen v. Phoenix Indemnity Co., 5 Cir., 1952, 198 F.2d 147.
Here, I fear, the Court has failed to make such a distinction in the Louisiana decisions cited.
III.
Since the District Court instructed a verdict for defendant, the evidence, of course, must be considered in its most favorable light to the plaintiff with every fair and reasonable inference which the evidence justifies. When so viewed, it seems clear that the evidence presented genuine factual disputes properly to be decided by the jury.
Much is made of the fact that plaintiff gave two accounts of the accident. On direct examination, plaintiff reported this version.
“A. It was awful dark. There was some engines switching and it was foggy. I was walking beside the track, or near the track. I stepped in a hole and fell into the train. I remember I tried to catch up on the train. I was walking along by it, walking along near the track; when the train hit me it was going north too.
“Q. Did you hear that train or did you see that train before it hit you?
******
“A. No, I didn’t see it.
“Q. Did you hear it? A. I guess I heard it, yes sir.
“Q. Did you know where it was or what direction it was from you? A. No-, I don’t know how far it was from me.
“Q. Did you know whether it was coming on the track that was close to you or not? A. No, sir, I don’t. It was dark. I don't know how many tracks was there.”
On cross examination, plaintiff responded in the following vein.
“Q. And then, I believe you said that you were walking along side a track and stumbled into the engine. Is that it? A. Something like that, I guess.
“Q. And this is how the accident happened ?
“(Witness nods his head).
“Q. Was your answer yes? A. That engine was coming backwards, I’m sure.
“Q. What makes you sure? A. Well, I think I’m sure.
“Q. But you stumbled into it? A. Yes.
“Q. And that is how the accident happened? Is that right? A. That is how I got hurt.
“Q. Is your answer yes to that question? A. Yes.”
But when plaintiff’s attorney on redirect examination attempted to clarify the testimony somewhat clouded on cross, the Court sustained the objection that it was repetitious.
Taking the evidence in the light most favorable to the plaintiff, as we must, the jury was entitled to find the following facts. On a dark and foggy night, plain*342tiff was walking along several sets of tracks in the railroad yards in the corporate limits of the town of Hammond. The tracks were frequently used by pedestrians as a wayfare. Behind him, a train operated by the Railroad was backing on the track along which he was walking. The train consisted of a locomotive, tender, and caboose.6 The backing train had a dim tank light with no reflectors on the back of the tender.7 No whistle was blown. No brakes were applied. No one was preceding the cars on the backup operation. No one was riding on the ear being pushed.8 No crewman ever did see plaintiff before the accident.
The engineer was backing the train. He testified that he was keeping a lookout. However, he never did see the plaintiff who was not on his side of the tracks, but he testified that the fireman was in the engine keeping a lookout on the other side.9
Based on this testimony, the Court holds that the engineer and the fireman “were [both] keeping a sharp lookout.” Of course, this again was a factual issue on which the jury was entitled to pass on the credibility of the testimony of this interested witness. On his own story it was evident that neither might have been able to see plaintiff in view of the position and length of the cars, the light, *343condition of the weather, and position of plaintiff and the engineer and fireman.
The reasonableness of the safety precautions — such as the use of a dim tank light when a train is backed as freely as operated forward, the absence of any person on the lead car being pushed whether that car was a caboose or a 40-foot long tender — especially in view of the dark and foggy weather conditions in a switchyard frequented by pedestrians is patently a genuine issue of fact traditionally to be determined by a jury. But this Court has ruled that as a matter of law the precautions and conduct of the train crew were reasonable and not negligent.
IY.
Moreover, the Court has ruled that as a matter of law the plaintiff was contributarily negligent. Viewing the evidence in the light most favorable to the plaintiff, as we must, I feel it presents factual issues on which reasonable minds might differ. The plaintiff did not see the train behind him backing toward him. lie thought he heard trains in the switching yard, but he did not hear this train. As he was walking along the track, he stumbled and fell and was struck by the train and was severely injured. The Court in a mixture of law declaring and fact finding says “If Rutherford had been exercising ordinary care, he would have seen the light on the tender of the train; if he had been listening, he would have heard the noise of the steam engine.” But the evidence is that he was walking with his back to the train and that the light on the train was very dim. Further he recounted — or tried to — that he stumbled and fell. This evidence once again manifestly presents factual issues to be determined by the jury — not the judge.10
V.
Finally, this Court rules out completely the doctrine of last clear chance or discovered peril. Brown v. Louisville & Nashville R. Co., D.C.E.D.La.1955, 135 F.Supp. 28, 31, affirmed 5 Cir., 234 F.2d 204, sets forth the various elements of the doctrine as it is applied in Louisiana. “As applied by the courts of Louisiana, the doctrine of last clear chance is composed of the following elements: (a) plaintiff is in a position of peril of which he was unaware or unable to extricate himself; (b) defendant in a position where he actually discovered, or should have discovered, the plaintiff’s peril; (c) at such time that the defendant could have, by the exercise of reasonable care, avoided the accident.” (Emphasis added.) Last clear chance does not depend solely on inability of one in peril to extricate himself from a perilous position. An unawareness that he is in a perilous position which the defendant could reasonably discover and thus by the use of ordinary care with the means then at hand have avoided the accident is sufficient.
This Court reaches the crucial fact finding that the Railroad could not have reasonably discovered plaintiff’s perilous position at such a time that it could, by the exercise of ordinary care, have avoided the accident. If the lighting had been brighter, if someone had been on the lead car, if the lookout had been keener — matters which the jury could reasonably find would be ordinary precautions under all the circumstances necessary actually to discover persons on the track whose general likelihood of presence had to be anticipated — surely a *344jury could properly find that the Railroad should have reasonably discovered the plaintiff. That is all that Louisiana requires since unlike many jurisdictions, actual discovery of peril is not essential. A railroad is held to have known what in prudence it should have known. The action which a prudent railroad should then have taken — such as blowing the whistle, giving a warning or applying the brakes — was likewise within the province of the jury to evaluate.
Because the action of this Court takes over the function of the jury to resolve these factual disputes, I must respectfully dissent.
. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
. Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079.
. Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303, 305; Gillen v. Phoenix Indemnity Co., 5 Cir., 1952, 198 F.2d 147; Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443; Pogue v. Great Atlantic & Pacific Tea Co., 5 Cir., 1957, 242 F.2d 575, 582; Atlantic Coast Line R. Co. v. Futch, 5 Cir., 1958, 203 F.2d 701, 707-709 (dissenting opinion) ; see Protection of Jury Trial in Diversity Cases Against State Invasions by Dean Leon Green, 35 Texas L.Rev. 70S (1957).
Smith v. Buck, 9 Cir., 1957, 245 F.2d 348, 349. “In considering a case of this kind, we should take note of the precedents established by the Supreme Court as to when it is proper to take a case from the jury. For although, this is a diversity case, it was tried in a federal court where considerations relating to the Seventh Amendment must prevail. It is incumbent upon us to be guided by such cases as Williams v. Carolina Life Insurance Co., 348 U.S. 802, 75 S.Ct. 30, 99 L.Ed. 633, and Gibson v. Phillips Petroleum Co., 352 U.S. 874, 77 S.Ct. 16, 1 L.Ed.2d 77.”
. Phillips Petroleum Co. v. Gibson, 5 Cir., 1956, 232 F.2d 13, reversed 352 U.S. 874, 77 S.Ct. 16, 1 L.Ed.2d 77; Eastern Air Lines, Inc. v. Union Trust Co., 1955, 95 U.S.App.D.C. 189, 221 F.2d 62, reversed at 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796; Atlantic Coast Line Railroad Co. v. Swafford, 5 Cir., 1955, 220 F.2d 901, reversed 350 U.S. 807, 76 S.Ct. 80, 100 L.Ed. 725; Carolina Life Ins. Co. v. Williams, 5 Cir., 1954, 210 F.2d 477, reversed at 348 U.S. 802, 75 S.Ct. 30, 99 L.Ed. 633.
. See also Magenau v. Aetna Freight Lines, Inc., 1959, 360 U.S. 273, 278, 79 S.Ct. 1184, 3 L.Ed.2d 1224. Cf. Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857.
. There is some confusion whether the caboose was attached to the head of the locomotive and was thus being pulled by the locomotive which was pushing a 40-foot long tender, or whether it was attached to the tender and was thus the lead car being pushed. This Court finds that the caboose was attached at the head of the locomotive. The evidence, however, was conflicting. This dramatizes how far the Court’s action goes in taking over the jury’s function in this type of factual dispute which a jury traditionally and properly resolves.
. The engineer testified about the lighting on the train.
“Q. Now, describe what you have on the front of the engine where you can see down the track. I am talking about the front. A. On the head end?
“Q. The head end. A. Have a headlight.
“Q. On the back of the tender, what do you have? A. You have a tank light. It’s a tank light and a case I would think about a hundred watt bulb — sixty to a hundred watt bulb.
“Q. What was the purpose of the light on the rear? A. The purpose was for people to see it or anyone to see it.
“Q. Would it give .you any vision down-the track? .A. To a certain extent, but not too much.
“Q. Not too much? A. No, sir.
$ $ $ $ *
“Q. Now, in backing up, do you recall the night of this accident, whether it was clear, moonlight, or whát the condition was? A. It was smoky and foggy.
“Q. Smoky and foggy? A. Yes, sir.
“Q. Did that tend to limit the vision on the night? .A. Yes, sir.”
. The engineer recounted as follows:
“Q. What did the tender have on the bottom of it in the back? A. What did it have?
“Q. What did it have in the way of a place where a brakeman or anyone could ride? A. It had a foot board back there.
“Q. Foot board? A. Yes, sir, what we call a foot board right on the back of the engine about five or six inches above the rail.
“Q. Do you have a railing? A. Has a hand railing on the side of it.
“Q. That a person could hold onto? A. Yes, sir.
* * * * *
“Q. Was anybody riding that step or foot rail on the back end of the tender? A. No, sir.
“Q. State to the jury whether or not any of the crewmen were preceding you or going down the track the same direction that you were going, ahead of the tender and the engine, with the electric light. A. No, sir.”
. Engineer’s testimony.
“Q. Were you keeping a lookout when you were backing up? A. Yes, sir.
“Q. Keeping a lookout there, did you or were you able to see Mr. Rutherford before the accident there? A. Mr. Rutherford wasn’t on my side.
“Q. Do you know whether or not your flagman was keeping a lookout? A. I know my fireman was.
“Q. I mean the fireman. A. Yes, sir. The fireman was on the lookout.
* # * * *
“Q. Did your fireman tell you or indicate to you that there was anyone on the track? A. No, sir.”
. Louisiana regards it as a fact question. Gibbs v. Illinois Cent. R. Co., 1929, 169 La. 450, 125 So. 445, 446, 447.
“It is contended * * * that, when a person in full possession of Ms faculties is struck by a train while walking on a railroad track, the recovery of damages will be denied. * * *
“We do not understand that in the cases cited the court intended to lay down as an inflexible legal proposition, by which the court should bo guided, that any person who goes upon a railroad track and is run down and killed by a train is debarred from the recovery, regardless of the circumstances under which the killing occurred. The rule is that every case for damages for personal injury or death must be decided on the facts of that particular case.”