DISSENTING OPINION OF
WIRTZ, J.I am in complete accord with the conclusion reached by the majority in the Opinion of the Court that, as a matter of law, there was insufficient evidence of negligence on the part of the defendant to permit or to support a verdict in favor of the plaintiff.1 However, I am unable to accede to the disposition made of the case in the remand.
The granting of a new trial is not responsive to the errors found by the court to have been committed by the trial judge. The entry of judgment for the defendant is, as it would cure the injury suffered by the defendant under these mistaken rulings. To now deprive the defendant of the judgment he should have been entitled to in the trial court seems not only to be unfair but to be adding insult to injury.
I cannot see the wisdom or propriety of giving the plaintiff another opportunity to try to establish negligence on the part of the defendant under any theory not apparent to her nor reflected in the record. It is also difficult to see how the plaintiff was prejudiced by “the manner in which the case was tried on the part of the defend*19ant.” The plaintiff’s burden of proof charged her with the duty and responsibility of proving the negligence of the defendant, while it was not incumbent upon the defendant to affirmatively establish due care on its part.
Unlike Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598 (5th Cir.), the plaintiff here was not misled in presenting evidence through the erroneous ruling of the trial judge as to the status and effect of the pleadings constituting admissions and obviating the necessity of proof. Nor can the evidence in this cáse be characterized as “vague and uncertain” and the jury possibly misled by a “deficient and prejudicial” charge with the resultant probability of a miscarriage of justice, as in Dowell, Inc. v. Jowers, 166 F.2d 214 (5th Cir.).
There being insufficient evidence of negligence, as a matter of law, the trial judge should have directed a verdict for the defendant and, failing that, to have cured his error by entering judgment for the defendant notwithstanding the verdict in favor of the plaintiff. The only way to rectify the situation and repair the damage done would be to now enter judgment for defendant. Cf., Brennan v. Baltimore & O. R.R., 115 F.2d 555 (2d Cir.).
I would therefore reverse and remand for entry of judgment for defendant.
This conclusion was reached by the court in its consideration and treatment of the first two specifications of error. The court sustained the first specification of error that “the court erred in failing to direct a verdict for appellant at the close of appellant’s evidence and at the close of aU the evidence.” In considering the second specification of error that “the court erred in not granting appellant’s motion for judgment notwithstanding the verdict” the court felt that, despite the insufficiency of the evidence to support the verdict, the defendant was not entitled, under the circumstances of the case, to judgment notwithstanding the verdict.