(dissenting).-
As I am not in accord with-the conclusions reached by the majority, it might not be amiss to review in part the background of this case. After a trial lasting two days, defendant made a motion for a directed verdict. The trial court denied the motion. That the question of defendant’s negligence was deemed a jury question is attested by the following excerpt from the charge of the court, to which defendant did not take exception: “When a man is operating an engine, the question is, do you think he is bound to keep his eye at all times on somebody who is walking alongside the engine at a distance of twelve feet, we will say, on a lower level? Is it want of care or prudence if he takes his eye off that person and does not look at him any more, but concentrates on the operation of the engine in pushing the cars up the siding? He could have seen Eckenrode — there is no question about that — if he had leaned out of the cab or put his head out of the side window of the cab and followed him with his eye. He could have seen him all the time. Is that a requirement of due care? Should an engineer do that? We all know that people walk alongside of tracks. Are you bound to anticipate that something -will happen to them which will throw them under the engine or that they will place themselves in *1001a position where they are going to be hit by the engine? That is a question for you. I am going to leave that entirely to you. Is it carelessness for a man driving an engine not to keep his eye on a man walking beside his cab at the distance at which Eckenrode was walking?”1 (Emphasis supplied.)
Eleven interrogatories were submitted to the jury. Answering those interrogatories, the jury, in defendant’s favor, found that there had been no violation of the Safety Appliance Acts and that plaintiff had been guilty of contributory negligence; in plaintiff’s favor, the jury also found that Sunderlin, the engineer, had been guilty of negligence, and returned a verdict for plaintiff. The court entered judgment on that verdict. It was only after defendant filed a motion nine days later to set aside the verdict, and hearing was held on that motion, that the court set aside the verdict and judgment and entered judgment in favor of defendant.
In view of what I deem the clear mandate of the Supreme Court, as expressed in Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Myers v. Reading, 1947, 331 U.S. 477, 67 S.Ct. 1334, and Lillie v. Thompson, 1947, 68 S.Ct. 140; I am hesitant to invade the fact-finding function of the jury, particularly where, as in the instant case, the jury displayed an ability to give consistent answers to interrogatories, which replies strongly indicate an impartial approach; and where the verdict is not challenged as to reasonableness of amount, if defendant was in fact negligent, and makes ample allowance for decedent’s contributory negligence. Moreover, it seems illogical to me for the court to. accept the jury conclusion as to one finding of fact (that the Safety Appliance Acts were not violated) but reject another (that defendant had been negligent).
The recital of facts in the majority opinion omits what seems to me a very relevant subject. Sunderlin, whose job on the crew was that of fireman but who was acting as engineer,2 testified that, at the time of the accident, he was seated on the engineer’s seat and looking through the small front window, through which he could see alongside the train but could not see along the side of the engine. To “see down the side” of the engine, he said, “you have to look out the side window”; and, had he looked out of the side window, he would have seen Eckenrode.3
On the other hand, Ingoldsby, the regular engineer who was acting as fireman when the injury occurred, testified that, in a seat*1002ed position, he4 would not be able to look out of the front window, and further that an engineer running an engine forward hangs out of the side window; that “if you can see out of the front, well, it is just as well,” but that “it wouldn’t be very nice standing up.” Completely apart from any •consideration whether Sunderlin was required to keep Eckenrode under continuous 5 observation, it seems to me that, on the basis of Ingoldsby’s testimony, the jury had an adequate basis ;for finding Sunderlin negligent in failing to lean out of the side window, especially since he was seated and since his ability to see out of the front window was at best dubious. As an italicized portion of the court’s charge quoted above and Sunderlin’s testimony clearly indicate, had Sunderlin assumed what the jury must be deemed to have found to be the correct operating position under the circumstances, he would have seen Eckenrode; and, giving the jury verdict the presumption to which it is entitled, I think it must be assumed that the train could have been stopped in time. I am not prepared to say, as a matter of law, that evidence of negligence in performance of a duty to Eckenrode was not presented in the case sub judice.
Consequently, I believe that the testimony concerning the operating position of the engineer, especially when Sunderlin had reason to know that Eckenrode was not on the train and would have seen Eckenrode had he looked out of the side window, was evidentiary basis for the specific jury finding that Sunderlin was negligent; nor does the fact that a “speculative” element may have been involved in the jury finding warrant the drawing of a contrary inference by the court. See Lavender v. Kurn, supra, at page 653 of 327 U.S., 66 S.Ct. 740, 90 L.Ed. 916. On the basis of this testimony alone, I cannot say that there is a complete absence of probative facts to support the jury decision.
I differ from the majority reasoning that Eckenrode’s status as a railroad man for forty years and his experience on this job he was performing at the time of the accident relieved Sunderlin of the necessity of keeping watch for him; for this, in my opinion, was a jury question which the jury resolved to the contrary. “Reasonable care and cause and effect are as elusive here as in other fields. But the jury has been chosen as the appropriate tribunal to apply those standards to the facts of these personal injuries. * * * To deprive these workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.” Bailey v. Central Vermont Ry., 1943, 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444.
Because I believe the instant case to be indistinguishable in principle from Lavender v. Kurn, supra, Lillie v. Thompson, supra, and Mostyn v. Delaware L. & W. R. Co., 2 Cir., 1947, 160 F.2d 15, certiorari denied 68 S.Ct. 82, I am of the opinion that the judgment of the district court should be reversed.
it should also be noted that plaintiff requested the following charge: “If under all the circumstances, you believe that the only way that the engineer could get a clear view would be by looking out of the side window, then his failure to do so would be negligence, and if by reason thereof the decedent suffered his fatal injury, then your verdict would be for the plaintiff.” The trial court denied the request, with this remark: “I will leave it to the jury to say whether his failure to look out of the side window was or was not negligent.”
Sunderlin was a qualified engineer, so that no negligence may be imputed to defendant on that score. That his usual duty was other than engineer, however, might have weight in determining whether, under the circumstances, he behaved like a reasonably prudent engineer.
Pertinent extracts from his testimony on this question are:
Mr. Richter [plaintiff’s counsel]: “And were you looking ahead?”
Mr. Sunderlin: “Yes, sir.”
Riebter: “Out of the side window?”
Sunderlin: “No, sir.”
**#*♦*♦
Richter: “By that you mean you would have seen him if you looked out the side window?”
Sunderlin: “Yes.”
Richter: “There was nothing to Mock your view out that side window, was there?”
Sunderlin: “That is right.”
Richter: “The window was open, was it not?”
Sunderlin: “Yes.”
Subsequently, on cross-examination as to Sunderlin’s position, the testimony was:
Mr. Rhoads [defendant’s counsel]: “Could you see along the side of the engine?”
Sunderlin: “No, sir.”
Rhoads: “Why not?”-
Sunderlin: “Because you couldn’t see down the side of the engine out that front window. You have to look out the side window.”
The exact testimony was:
Mr. Richter: “Sitting down can you look out of that front window?”
Mr. Ingoldsby: "No.”
Whether the word “you” means “an engineer” or “Ingoldsby” cannot be determined from the record. For the purpose of this discussion, I treat “you” in its more restrictive connotation.
1 consider it immaterial whether Sunderlin had a duty to observe Eckenrode continuously. For the purposes of this case, plaintiff need only establish that Sunderlin failed to observe Eckenrode at a time when he had a duty to. do so.