concurring:
I reluctantly join in the court’s conclusion that under the standard of Smith v. Ar*1345baugh’s Restaurant, Inc., 152 U.S.App.D.C. 86, 469 F.2d 97 (1972), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973), it was error for the district court to exclude the plaintiff’s proffered evidence of the use of the railroad yard by unauthorized pedestrians. My reluctance arises not from any doubts as to the legal correctness of the court’s decision, but rather from a practical concern that our action will only generate duplicative legal process yet leave the parties in exactly the same position as they are in now.
As a result of our decision today, this case must be completely retried in the district court. No doubt the evidence will be substantially the same as that in the previous trials of this same suit with the marginal addition of testimony about others’ use of the railroad yard in the area of the plaintiff’s accident. I cannot avoid the firm conviction that this marginal difference will not tip the evidentiary scales in plaintiff’s favor so as to change the jury’s conclusion that the railroad did not act negligently in the circumstances of this case.
Nevertheless, as an appellate court, we should not usurp the function of the trier of fact and I cannot say that the exclusion of this evidence was harmless error. See Fed. R.Civ.P. 61. The question of the extent to which- the railroad could have foreseen plaintiff’s use of the track yard as a walkway was not adequately established by other evidence. See Smith v. Bear, 237 F.2d 79, 89 (2d Cir. 1956). The evidence proffered was neither remote nor cumulative. See Jones v. United States, 387 F.2d 1004, 1007-08 (10th Cir. 1967), cert. denied, 392 U.S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1385 (1968). Although, as I have indicated, I doubt that the issue of foreseeability was determinative in the jury’s verdict for the defendant I cannot find that it had no bearing on their decision. See United States v. Heyward-Robinson Co., 430 F.2d 1077, 1083 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971); Larson v. General Motors Corp., 148 F.2d 319, 322 (2d Cir.), cert. denied, 326 U.S. 745, 66 S.Ct. 34, 90 L.Ed. 445 (1945).