(concurring and dissenting).
I join in affirming Ratigan’s judgment against the New York Central and the dismissal of the Central’s second and third cross-claims, for the reasons stated by Judge MEDINA; as to the Central’s first cross-claim I would grant a new trial.
We must assume the jury, which deliberated more than four hours, intended its answers to be consistent. It had been instructed as to the difference between active and passive negligence — perhaps not, as my brother MEDINA observes, with pristine clarity, but in a way to which no one had objected and which sufficiently conveyed a distinction so inherently incapable of precise statement. One thing the jury had been unmistakably told: “The person or corporation guilty of active negligence has been characterized as a primary or principal wrongdoer responsible for his negligent act not only to the person injured, but also to one indirectly harmed by being cast in operation of law for the wrongful act.” In the light of that instruction, the jury’s answers to questions 7 and 8 reveal rather plainly who it thought should be held.
My brothers say the jury failed to accomplish its purpose because it gave an affirmative answer to question 5: “Did the method of operation by which the New York Central Railroad Company moved the car to its destination on the siding constitute negligence?” If question 5 must be read as limited to such a matter as kicking the car rather than moving it by the engine (and if we further assume there was sufficient evidence of that constituting negligence, which I doubt), the answer would be inconsistent with the answer to question 7 finding the Central guilty of passive negligence alone. But why must it be so read ? For all I can see, the jury may have understood the question as including failure to give Ratigan proper notice of the proximity of the canopy, which would be only “passive” negligence if the railroad did not actually know of the canopy but merely ought to have known, McFall v. Compagnie Maritime Belge, 1952, 304 N.Y. 314, 107 N.E.2d 463; Ruping v. Great Atlantic & Pacific Tea Co., 3d Dept.1953, 283 App.Div. 204, 126 N.Y.S.2d 687; Putvin v. Buffalo Elec. Co., 1959, 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691. This seems all the more likely in view of the question asked by the jury, after two and a half hours, whether “the phrase ‘method of operation’ appearing in 5 and 6 cover all human and mechanical activities (including verbal instructions) connected with moving the car to its destination, or is the phrase limited to mechanical operations ?”, and the judge’s response “It is not restricted just to mechanical.” On that view, which ought be adopted, if at all possible, in order to reconcile the answers, judgment should have been entered for the Central on its third party claim. If the District Judge was doubtful about this, as he might well have been, the jury could have been asked to clarify what it meant; or if his doubts did not crystallize until later, he could have directed a new trial on the Central’s claim against Interstate. But I see no warrant for striking the jury’s answers to questions 7 and 8 and then, on the basis of its answer to ques*557tion 5, which, to say the least, is ambiguous, entering a judgment on the cross-claim quite evidently opposed to the result the jury intended and could permissibly have reached on the evidence.
F.R.Civ.Proc. 49(a), which is here applicable, contains no provision for the court’s disregarding an answer, in the way that the penultimate sentence of 49(b) permits the court to disregard a general verdict “When the answers [to special interrogatories] are consistent with each other but one or more is inconsistent with the general verdict.” The problem under 49(a) is more like that dealt with in the last sentence of 49(b) ■“When the answers are inconsistent with each other * * * ”; there the Rule provides that “the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.” The evident sense of this is that when the answers are all consistent, a contrary general verdict may be disregarded as an aberration; but when the answers are inconsistent, disregard of any would be a denial of jury trial.
Despite this, my brothers say the answers to questions 7 and 8 may be disregarded because these ought not have been asked in the first place, since, in their view, the two latter questions do not relate to an “issue of fact.” Whether Rule 49 uses “fact” in the limited} sense which we have held with respect to “findings of fact” in Rule 52(a), see E. F. Drew & Co. v. Reinhard, 2 Cir., 1948, 170 F.2d 679, 683-684 and the cases as to negligence cited in Romero v. Garcia & Diaz, Inc., 2 Cir., 1961, 286 F.2d 347, 355, certiorari denied 1961, 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860, or in the broader sense of including mixed questions of law and fact, seems not to have been clearly decided — certainly the district courts in this circuit have not regarded themselves as confined to the former. Although statements in Cate v. Good Bros., Inc., 3 Cir., 1950, 181 F.2d 146, 149, certiorari denied 1950, 340 U.S. 826, 71 S.Ct. 62, 95 L.Ed. 607, and in Thedorf v. Lipsey, 7 Cir., 1956, 237 F.2d 190, 193, cited by Judge Foley and by my brother MEDINA, give some support to the former view, others say that a mixed question of law and fact may be put if the jury is properly instructed on the applicable legal standards, Jackson v. King, 5 Cir., 1955, 223 F.2d 714, 718; McDonnell v. Timmerman, 8 Cir., 1959, 269 F.2d 54, 58; A. M. Webb & Co. v. Robert P. Miller Co., D.C.E.D.Pa.1948, 78 F.Supp. 24, 27, reversed on other grounds, 3 Cir., 1949, 176 F.2d 678; McCandless v. L. G. De Felice & Son, Inc., D.C.W.D.Pa.1956, 144 F.Supp. 462, 464. If it were necessary here to resolve the issue, I doubt that trial courts should be so hamstrung ; to such extent as the device provided in Rule 49 has utility, and cases like this indicate the difficulties its use may create, the court should be able, in a complicated trial, to elicit the jury’s view on “ultimate” issues and not merely on evidentiary ones. “The number and form of issues, if they present the case fairly, is a matter resting in the sound discretion of the trial judge.” Norfolk Southern Ry. Co. v. Davis Frozen Foods, Inc., 4 Cir., 1952, 195 F.2d 662, 666, second appeal 4 Cir., 1953, 204 F.2d 839, certiorari denied, 1953, 346 U.S. 824, 74 S.Ct. 41, 98 L.Ed. 349. For that matter, if the rule be as narrow as my brothers think, question 5 also is not immune from criticism.
However, we are not required to decide that issue here. The Cate and Thedorf cases held merely that it was not error to submit only issues of fact without instructions as to their legal consequences, — not that a party who has not objected to the submission of a mixed question of fact and law may have a disappointing answer disregarded and judgment entered in his favor as if the question had not been put. Here the jury gave its considered verdict that the Central was not guilty of active negligence and that Interstate was, after having been charged in the clearest terms what the consequences would be. Even if that answer was inconsistent with the answer to question 5, which I do not think it necessarily was, the only proper course, *558once the jury was discharged, was to order a new trial; neither the district court nor we are permitted to guess which of the two answers the jury would have altered if the alleged inconsistency had been promptly explained. The ruling of the district judge, now affirmed by my brothers, seems to me to deprive the Central of its right to a jury trial. See Union Pacific R. Co. v. Bridal Veil Lumber Co., 9 Cir., 1955, 219 F.2d 825, 831-832, certiorari denied 1956, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 849.