specially concurring.
I concur in the judgment and in all of the majority opinion except the portion stating that in FELA and Jones Act cases the plaintiff’s claim of entitlement to a directed verdict or judgment n.o.v. in his favor is judged under the standard set forth in Boeing v. Shipman, 411 F.2d 365, 370 (5th Cir.1969) for cases other than Jones Act and FELA cases, while the defendant’s claim of entitlement to a directed verdict of judgment n.o.v. in his favor is judged under the standard set forth in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); in other words, that it should be easier for the plaintiff to get a directed verdict than for the defendant to do so.
Decision of this “issue” is not pressed upon us by either party and is wholly unnecessary to disposition of this appeal, the evidence here obviously being amply sufficient to justify the jury’s verdict no matter what standard is employed, as the majority recognizes.
Since the majority nevertheless states its views on the matter, I will briefly express mine. In the conceded absence of control*101ling precedent compelling such a holding, * I would not embrace this sort of result-oriented double standard.
The directed verdict-judgment n.o.v. standard can be seen either as a jurisdictional boundary — marking the division of power between judge and jury — or as a means to help ensure that judgments rest on factual truth. In neither perspective is use of a double standard appropriate. If we trust the jury as a decision maker, we must trust it to decide for either party. Otherwise we demean the jury which is so hallowed in our traditions and in our Constitution. If justice demands that verdicts rest on factual truth, then the degree of offense to justice is the degree to which verdicts vary from the truth, not the degree to which they vary from being in favor of one party or the other. The whole concept of an independent judiciary and the rule of law as we understand it, and have understood it for centuries, is based on rules of general application, evenhandedly applied. No one is above or below the law, and our duty is to “administer justice without respect to persons, and do equal right to the poor and to the rich.” Though the wound to principle here is slight, the principle is one that lies close to the heart.
Indeed, I find it difficult to reconcile the majority's view with this Court’s statement in Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 n. 2 (5th Cir.1978), evaluating a claim that the evidence was insufficient to support a jury finding that the Jones Act employer was not negligent, that ”[t]he Lavender standard is applicable whether the jury verdict favors the plaintiff or defendant.” Moreover, we recognized in Robin v. Wilson Brothers Drilling, 719 F.2d 96, 98 n. 2 (5th Cir.1983), that "this court has consistently applied the FELA [Lavender] standard” to claims that there is insufficient evidence to support a jury finding that a Jones Act plaintiff was contributorily negligent. See Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d 17, 19 (5th Cir.1983) ("This court applies the same standard whether reviewing findings regarding a defendant’s or a plaintiffs negligence.”) (Jones Act); McBride v. Loffland Brothers Company, 422 F.2d 363, 365 (5th Cir.1970) (”[W]e can see no reason why the [Lavender] rule should not operate equally and evenhandedly as to negligence and contributory negligence. We so hold.”) (Jones Act). See also Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329, 1331 (2d Cir.1971) (“The same [Lavender] test applies in determining the sufficiency of the evidence as to a plaintiff-seaman’s contributory negligence.”). I do not understand why we should undertake to state views contrary to those of the above-cited decisions of this Court, particularly where that is not necessary to the disposition we make of the case before us.