dissenting.
I respectfully dissent because the majority in affirming the district court has sanctioned a violation of Rule 49(b) of the Federal Rules of Civil Procedure as well as a transgression of the time-honored rule of this Court, bottomed largely on the Seventh Amendment to the Constitution, that before judgment notwithstanding the verdict may be granted there must be a motion for a directed verdict.
I.
To understand these two issues clearly, it may be helpful to restate briefly the pertinent facts. Plaintiff Wilbur McLaughlin was injured while setting up a gear hobbing machine on the premises of his employer. After a four-day trial, the district court submitted to the jury an original set *600of special interrogatories which asked them to determine: (1) whether the gear hobbing machine which allegedly caused McLaughlin’s injury was defective; (2) if so, whether the defect was the proximate cause of the injury; (3) whether it was foreseeable that users of the machine would on occasion stand on the machine’s railing in the course of setting it up as McLaughlin did; and (4) whether McLaughlin had assumed the risk of injuring himself. The jury was also directed, if it found for McLaughlin and his wife, to determine the damages to be awarded to them. Although both defendants renewed their motions for a directed verdict at the close of the evidence and before submission of the interrogatories to the jury, as required by Federal Rule of Civil Procedure 50(a), plaintiffs made no motion for a directed verdict then or at any other time.
The jury returned answers to the interrogatories, finding that the gear hobber was defective; that the defect caused McLaughlin’s injury; that it was not foreseeable by the manufacturer that workers might stand on the machine’s railing; and that McLaughlin had assumed the risk of injuring himself when he deliberately placed his hand near a known pinchpoint in the equipment. Although these answers, given the finding on assumption of the risk, required that a verdict for defendants be entered, the jury nonetheless awarded $100,000 to McLaughlin and $20,000 to his wife.
When the answers to the interrogatories were returned, and it was perceived that they were inconsistent with the general verdict, plaintiffs moved for a mistrial. Defendants moved for entry of judgment in their favor, on the basis of the clear finding by the jury that the plaintiff had assumed the risk and because they had filed a motion for a directed verdict. The district court declined to grant either of these motions. Instead, over objection, he submitted two additional special interrogatories to the jury. These additional interrogatories were intended to determine whether the jury had found that McLaughlin’s unforeseeable use of the machine in standing on its railing had been a cause of the accident. The jury in response to the supplemental questions found that McLaughlin’s position on the railing was neither the sole nor a substantial factor in causing his injury. Upon the return of these answers, and without any motion for a judgment n.o.v. by plaintiffs, the district court “set aside” the jury’s finding of assumption of risk, and entered judgment for plaintiffs.
The majority concludes that the trial court acted properly (1) when it submitted the supplemental interrogatories to the jury, and (2) when it set aside the jury’s finding of assumption of risk despite the absence of a motion for a direct verdict, and proceeded to enter judgment for plaintiffs. It reasons that the “resubmission” of additional special interrogatories was permissible under Federal Rule of Civil Procedure 49(b) and was appropriate since the jury’s initial answers to special interrogatories were inconsistent with each other and with the general verdict. It further concludes that the trial judge did not err in setting aside the jury’s finding of assumption of risk because that action did not amount to granting a judgment notwithstanding the verdict and thus was not governed by the procedural strictures of Federal Rule of Civil Procedure 50(b). Agreeing with the district court’s conclusion that there was insufficient evidence to support a finding that McLaughlin assumed the risk of injuring his thumb, the majority holds that the district court was justified in rejecting the jury’s finding of assumption of risk and entering judgment for plaintiffs on the jury’s other special findings, in accordance with its return of a general verdict for plaintiffs.
I disagree that this case involves a matter of resubmission to the jury of inconsistent answers to special interrogatories. The special findings of the jury, both before and after the trial court submitted the supplemental questions, were reconcileable with one another. Although the findings by the jury were plainly inconsistent with the general verdict for plaintiffs, both the Seventh Amendment and Fed.R.Civ.P. 49(b) *601prohibit a federal court from choosing from among a jury’s findings those that will be set aside and those that will be given effect. Under Fed.R.Civ.P. 49(b), when a jury’s answers to special interrogatories are consistent with each other but inconsistent with the general verdict, the court may either request the jury to reconsider all of its answers, enter a judgment consistent with the jury’s special findings, or grant a new trial. Even if the special findings of the jury in this case were inconsistent with one another, the appropriate course of action under Rule 49(b) was to order a new trial or to resubmit all of the answers to the jury to allow it to reconcile them itself.
Furthermore, the procedure employed in the district court violated the clear-cut requirement stated in Federal Rule of Civil Procedure 50(b) and emphasized in numerous opinions by this Court that a grant of judgment n.o.v. must be preceded by a motion for a directed verdict specifically identifying the ground upon which judgment n.o.v. is requested. This rule serves important practical purposes in ensuring that neither party is precluded from presenting the most persuasive case possible and in preventing unfair surprise after a matter has been submitted to the jury. More importantly, the rule has constitutional underpinnings in the Seventh Amendment’s guarantee that “no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
Because I conclude that the trial court invaded the province of the jury when it set aside the finding of assumption of risk, I respectfully dissent.
II
A.
The first three special interrogatories submitted to the jury concerned the issues whether the gear hobbing machine was defective and, if so, whether the defect was the cause of McLaughlin’s injury. Arguably, the third question regarding whether McLaughlin’s position on the railing was foreseeable ought not to have been submitted to the jury separately from the first interrogatory. Whether a manufacturer has a duty to protect against dangers posed by unintended uses is an issue subsidiary to the larger question whether a product is defective within the meaning of § 402A of the Restatement (Second) of Torts. See, e.g., Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 900-03 (1975) (Jones, C.J., with one judge concurring and five judges concurring in the result); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615, 619 (1983); Eschbach v. W.T. Grant’s and Co., 481 F.2d 940, 942-43 (3d Cir.1973). Thus, the jury’s third finding, that McLaughlin was engaged in an unforeseeable use of the machine at the time of the accident, was potentially inconsistent with its first finding that the machine was defective. Nonetheless, the jury’s first three answers were also subject to an interpretation that rendered them consistent. From its answers to the first two special interrogatories, indicating that the machine was defective and that the machine’s defect had caused the accident, it could have been inferred that McLaughlin’s position on the railing had not contributed to the accident in any way. Reading the answers in this fashion, the jury’s finding that McLaughlin’s position on the railing was an unforeseeable use was consistent with its finding that the gear hobber was defective. Because under the Seventh Amendment, a federal court is required to seek a view of the special findings of the jury that will render all of them consistent, if possible, the jury’s first three findings should have been so viewed. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Alvarez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1040 (5th Cir.1982).
Nor was the jury’s fourth special finding — that McLaughlin had voluntarily assumed a known risk by consciously placing *602his hand in an area that he knew posed a danger of injury — at odds with its findings of defect, causation, and the unforeseeability of McLaughlin’s position on the railing. The jury in effect found that although all the elements of defendants’ liability existed, a complete defense to that liability existed as well, by virtue of McLaughlin’s assumption of the risk. This is so because, under Pennsylvania law, a finding of assumption of risk constitutes a complete defense to the imposition of strict liability on a defendant. See Berkebile, 337 A.2d at 901; Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746, 748 (1966).
Clearly, the jury’s general verdict for plaintiffs was inconsistent with its finding that McLaughlin had assumed the risk of injuring himself, as the assumption of risk finding should have mandated a verdict for defendants. However, under Fed.R.Civ.P. 49(b),1 where a jury returns answers to special interrogatories that are consistent among themselves but inconsistent with the general verdict, as was the case here, the remedy is either to set aside the general verdict and enter judgment upon the special findings; to return the jury so that it may reconsider and reconcile all of its findings; or to grant a new trial. Neither Rule 49(b) nor any other Rule of Civil Procedure allows a court to “set aside” those special findings that conflict with the general verdict, absent the filing of a motion for a directed verdict on those specific findings at the close of the evidence and a motion for a judgment notwithstanding the verdict. See Fed.R.Civ.P. 50.
The majority relies upon Stanton v. Astra Pharmaceutical Products, 718 F.2d 553 (3d Cir.1983), as the sole authority for its position that the district court’s actions in this case were in conformance with Rule 49(b). However, Stanton merely approved the resubmission to a jury of all of its inconsistent special findings to allow the jury to reconcile them itself. This practice is clearly contemplated by Rule 49(b). Although the majority would characterize the procedure followed in the district court here as the “resubmission” to the jury of supplemental interrogatories for the purpose of clarifying its inconsistent initial findings, it is plain that this case presents a situation quite different from that in Stanton. No supplemental interrogatories were submitted to the jury in Stanton, as was done here. It is true that Stanton approved in dictum the submission of supplemental questions to a jury where the answers may serve to reconcile potential conflicts in the initial special findings. Stanton, 718 F.2d at 575 (citing Morrison v. Frito-Lay, Inc., 546 F.2d 154, 161 (5th Cir.1977)). However, even assuming arguendo that such a practice is permitted under Rule 49(b), its purpose would be to reconcile, if possible, all the findings of the jury. The procedure followed in the case at hand did not harmonize the jury’s initial findings; indeed, they were already consistent. And their consistency was only reaffirmed by the jury’s response to the supplemental questions. Furthermore, the submission of the supplemental interrogatories in no way affected the jury’s finding of assumption of risk. That finding indicated that a judgment for defendants was proper. While that finding was at variance with the general verdict returned by the jury, only the jury could resolve that inconsistency.
Neither Stanton nor any other case cited by the majority purports to authorize a court to set aside one of the jury’s special findings so as to reconcile the findings and verdict as the court sees fit. Thus the procedure followed in the district court, in my view, was improper under Rule 49(b).
*603B.
In addition to holding that the setting aside of the assumption of risk finding was in accordance with Rule 49(b), the majority concludes that that action did not constitute a grant of judgment n.o.v. and thus is not governed by Rule 50(b). Its reason for so concluding is that, since the jury returned a general verdict for plaintiffs, “plaintiffs were not in a position to be seeking judgment n.o.v. under Federal Rule of Civil Procedure 50.” Ante at 597 (footnote omitted).
The majority thus appears to assume that the rules governing the grant of judgments n.o.v. have no applicability where a court sets aside a special finding by the jury as distinguished from setting aside a general verdict. This assumption, however, is unfounded. Whether a court seeks to set aside the jury’s general verdict or a subsidiary finding, its power to do so is limited by the Seventh Amendment. The power of the trial court is also governed by Rule 50(b), which sets forth the procedure that must be followed in order to set aside a jury’s findings without transgressing constitutional boundaries.
In Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1955), the Supreme Court considered the constitutionality of judgments n.o.v. It explained that the aim of the Seventh Amendment was to retain the common-law distinction between the roles of the court and of the jury. Thus, practices recognized at common law at the time the Seventh Amendment was adopted were deemed to be consistent with the amendment. The Court observed that, at the time of the amendment, entry of a judgment n.o.v. was permitted if the trial court had expressly reserved the question of the sufficiency of the evidence to be ruled upon after the jury had returned a verdict. The Supreme Court thus held that, where a trial court takes a jury’s verdict subject to the opinion of the court on a question of law, it may set aside the jury’s verdict for one party and enter judgment for the other without infringing the Seventh Amendment right to trial by jury. The Court distinguished Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913), in which it had held that entry of a judgment contrary to that returned by the jury violated the Seventh Amendment, on the ground that in Slocum the trial court had not expressly reserved the question of the sufficiency of the evidence.
Federal Rule of Civil Procedure 50(b) somewhat modified the requirements set forth in Redman. Rule 50(b) dictates that a party make a motion for a directed verdict at the close of all the evidence before judgment n.o.v. may be granted in his favor. Thus, where a motion for a directed verdict has been made, a trial court need not expressly reserve its ruling on the sufficiency of the evidence before the matter is submitted to the jury in order to preserve its authority to enter a judgment n.o.v. However, the motion for a directed verdict serves the same purpose as an express reservation. As Rule 50(b) explains: “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.”
The Supreme Court has never indicated that Redman is no longer the law or that a judgment n.o.v. may constitutionally be granted without a prior reservation, whether explicit or implicit, of the question regarding the sufficiency of the evidence. And the cases in this Circuit have been emphatic in reaffirming the necessity that a judgment n.o.v. be preceded by a motion for a directed verdict, and in recognizing the constitutional underpinnings of that requirement. For example, we stated in Lowenstein v. Pepsi-Cola Bottling Co., 536 F.2d 9 (3d Cir.1976):
To ask the court to enter a judgment, contrary to a general verdict of the jury where no motion for a directed verdict has been interposed, is simply to ask the court to re-examine the facts already tried by the jury, and this the court may *604not do without violating the Seventh Amendment.
Id. at 11 (quoting 5A Moore’s Federal Practice § 50.08, at 2358-59 (1975)). See also Bonjorno, 752 F.2d 802 at 814; Acosta v. Honda Motor Co., 717 F.2d 828, 831 (3d Cir.1983); Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228, 233 (3d Cir.1981).
. While the district court did not enter a judgment contrary to the general verdict returned by the jury, its action in setting aside the jury’s finding that McLaughlin had assumed the risk no less involved the court in re-examining the facts found by the jury. In Bonjorno, we recognized that a grant of judgment n.o.v. regarding a single issue, absent a motion for a directed verdict on that issue, implicated the Seventh Amendment. As we explained there, “[W]hen a trial court decides an issue after it was properly submitted to the jury, it may deprive the non-moving party of his Seventh Amendment rights.” 752 F.2d at 814.
There are additional purposes served by Rule 50’s requirement that the grant of a judgment notwithstanding the verdict be preceded by a motion for a directed verdict. Rule 50(a) requires that a motion for a directed verdict specifically identify the ground on which a directed verdict is sought. Our cases have re-enforced that requirement by holding that a judgment n.o.v. may not be granted on a ground not expressly raised in a motion for directed verdict. See, e.g., Bonjorno, 752 F.2d at 814; Abraham v. Pekarski, 728 F.2d 167, 172 (3d Cir.1984); Acosta, 717 F.2d at 831-32. This rule ensures that the non-moving party is given the opportunity to cure any defects of proof that might exist rendering his case insufficient to warrant submission to the jury. “A motion for judgment n.o.v., without prior notice of alleged deficiencies of proof, comes too late for the possibility of cure except by way of a complete new trial.” Lowenstein, 536 F.2d at 11. See also Acosta, 717 F.2d at 831-32; Wall v. United States, 592 F.2d 154, 159-60 (3d Cir.1979).
In this case, far from having raised the specific issue of assumption of risk in a motion for a directed verdict, plaintiffs never filed such a motion at all. Thus, defendants had no warning that the district judge, after properly submitting the question to the jury, might later decide to set aside the jury’s finding based on his own determination that McLaughlin had not assumed the risk. By so doing, the trial court violated both the Seventh Amendment and Rule 50(b).
III.
Under the circumstances presented in the district court, when the jury returned a general verdict for plaintiffs along with a special finding of assumption of risk, the district judge should have returned the jury for further consideration of its answers and its verdict, or entered judgment for defendants, or granted a new trial. As the district court declined to follow the first of these courses of action, we are limited on review to choosing between the latter two options. Although I disagree with the majority that there was insufficient evidence as a matter of law to support the finding of assumption of risk, where the jury obviously misunderstood the consequences of its finding that McLaughlin had assumed the risk of injury and was not given the opportunity to reconcile the answers and verdict itself. I would hold that a new trial is the more appropriate alternative.
I recognize that it may appear harsh to some to deprive plaintiffs of a judgment in their favor because of what could be viewed as a technicality. However, the requirement that a judgment n.o.v. be preceded by a motion for a directed verdict is based on the Seventh Amendment right to trial by jury. What is more, the rule is clearly stated in the Federal Rules of Civil Procedure and the importance of compliance with the prescribed procedure has been emphasized repeatedly by this Court. We are not free to ignore these rules which have been carefully drafted, and approved by the Supreme Court and the Congress *605after thorough consideration by the entire bar, merely because their enforcement may be perceived as producing an undesirable result in a particular case. Accordingly, I would vacate the judgment for plaintiffs and order that a new trial be granted.