(dissenting in part and concurring in part):
I respectfully dissent from that portion of Judge Simpson’s opinion which reverses the verdicts for Martin and Aircraft. The majority’s statement of the governing principles of law is both accurate and precise. My problem relates solely to the application of those conventional principles to the acknowledged, uncontested facts of this cause. Certainly cases sounding in negligence rarely lend themselves to directed verdicts — but they are not privileged to enjoy a total immunity from Rule 50. Because the proof in this record failed to show any connection whatsoever between the 1954 actions of Martin and Aircraft and test pilot Moyer’s death ten years later, I would affirm the trial court’s dismissal of these parties.
Four grounds of negligence were asserted against these private corporate parties. (1) A spring-loaded safety pin was too weak. The proof failed to demonstrate any weakness in this pin and spring assembly, rather, as the majority points out, the evidence demonstrated that Moyer deliberately held the pin out of its normal position while operating the seat arm. (2) The ejection mechanism was placed in the right-hand rather than the left-hand armrest. This was a design requirement of the United States. The private parties had no control over or responsibility for this feature.1 (3) The initiator pins (also called safety pins), which were the primary safety devices for this mechanism, were not identified by streamers. Moyer’s pilot instruction sheet contained the following bold print notice:
CA7608]
Do not remove seat safety pins until after armrest has been raised to the flight position. Inadvertent firing of the pilot’s ejection seat could result when raising the armrest.
His actions were further governed by a requirement that he remove the pins only after setting and locking the armrest and that he then display the pins to the ground crew. To say that any competent test pilot could have regarded these pins as insignificant is either incredible or ridiculous or both. (4) A part called a roll pin was removable and was not adequately marked as a safety device. The only ground warranting discussion is (4) — the roll pin.2
Under the heading “Undisputed Facts” the majority could have included the following additional items of proof which are equally uneontroverted.
The specifications which controlled the design and manufacture of this seat *600were promulgated by the United States in January 1952. The particular plane, together with the seat here involved, was delivered to the United States in July 1954 and was under the exclusive control of the United States after that date. The seat was an integral part of a highly dangerous instrumentality designed for use only by uniquely trained, qualified personnel.
From 1952 when this plane was designed by the United States to the date of Moyer’s death there had never been an accidental ejection from this type of plane either on the ground or in flight and there had never been an accident of any kind traceable to the removal of a roll pin.
If the roll pin had been strong enough to have stopped the armrest support tube in the final % inch of its travel, such stoppage would have prevented the firing of the ejection charges because it would have kept Moyer from jerking the entire armrest support tube out of its socket. However, this secondary safety function of the roll pin does not create any jury issue in this case because it was never designed or intended to be removable in any proper sense of that term. It was a permanently installed part of the seat arm. When the mechanic, Bass, in attempting to carry out the modification the government had decided to make without the participation or approval of Martin and Aircraft, erroneously determined to remove this roll pin (to correct an earlier mistake he had made) the majority says he had to use “considerable force”. “Considerable” seems a clear understatement to me. Bass had to utilize a set of vise grip pliers and a hammer to enable him to bring 350-400 pounds of pressure to bear in order to wrench the pin out of the tube. To compound Bass’ multiple errors, the final inspection called for by the modification contract negligently failed to detect his omission to reinstall the roll pin. Ironically, the roll pin had nothing to do with the modification required by the United States, nor did it have anything to do with correcting the initial error made by Bass in trying to carry out the modification work. Moreover, the top end of the tube assembly as designed and constructed by Martin and Aircraft had easily removable retaining rings which should have been used — if it ever became necessary to remove the tube assembly. Reducing the precision of aviation mechanics to work-a-day terms, this tragedy of errors can be likened to a laborer who, thinking he must reach the other side of a brick wall to do his job, takes a sledge hammer and knocks a hole in the wall instead of using a door — only to be followed by a building inspector who fails to notice the hole.
I think it must be conceded that no mechanism could ever be made fool proof. For example, if the tube in question had been designed with a flared end or with a welded collar instead of the roll pin, a mechanic as determined as Bass could have cut it off with a hack saw or welding torch. In any event, the crucial and unassailable fact is that this roll pin was never intended to be a removable part. That Bass was able to strong-arm it out doesn't make it so.
Whether the issue be cast as one to determine original negligence unbroken by intervening cause, or contributory negligence, or proximate cause, or forseeability, I can’t find anything in the proof developed in this case for a jury to act on. This kind of failure-of-proof situation is the raison d’etre for the rule permitting a judge to direct verdicts in jury cases. I would not fault its application to Martin and Aircraft here.
I concur in that portion of Judge Simpson’s opinion which requires the court to reach the merits of the plaintiff’s claim against the United States.
. Plaintiff’s expert witness was also critical of integrating the ejection firing mechanism into a movable armrest. This feature was also wholly dictated by the specifications developed by the United States.
. With the hope that a picture can be worth a thousand words, stylistic representations of the seat with the armrest mechanism in its normal up and down positions are set out below:
Down position for Up position for flight entry
(2) Explosive charge (s) Roll pin
(g) Initiator (safety) pins @ Retaining ring