Concurring and Dissenting Opinion by
Price, J.:I must dissent from the Majority’s conclusion that a jury trial is necessary to resolve the issue of Union Railroad’s liability for Mr. Ciarolla’s injuries as to the Peters Creek Bridge accident. I have scrutinized the entire record and can find nothing which supports appellant’s allegation that Union Railroad was negligent in the *146methods it employed to construct that bridge. Therefore, even under the doctrine of Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500 (1957), I cannot find sufficient evidence of negligence to place this case before a jury.
I am unable to agree with the Majority’s statement of certain facts. With regard to the Peters Creek Bridge accident, the Majority states: “According to his testimony, in his nineteen years on the railroad he had never operated a grip hoist before the Peters Creek assignment, and on the day in question he was unable to lift as quickly as was his partner . . . .” However, on cross-examination, Mr. Ciarolla stated:
“By Mr. Paris:
Q. Mr. Ciarolla, this was not the first occasion that you operated a grip hoist. Is that correct?
A. In that manner, yes.
Q. What other occasions had you operated a grip hoist?
A. Oh, there was times when maybe we had to pull maybe two pipes or two of something together, something like that. I don’t recall.
Q. But you had never used the grip hoist to raise a beam?
A. No, this was the first job I ever did with a grip hoist on a beam.
Q. Did you ever use the grip hoist after this occasion to raise beams?
A. I don’t recall.
Q. Now, how long had you used the grip hoist on the Peters Creek Bridge?
A. As long as I was there, and I don’t recall the date.
Q. Do you recall how many days?
A. No, I don’t_” (NT 54a-55a)
Mr. Ciarolla further testified:
“Q. Do you recall how many days before that that you worked and used the grip hoist?
*147A. No, I don’t. I did use it a few times, but I don’t recall when.” (NT 63a) (Emphasis added)
Later on cross-examination, Mr. Ciarolla testified as follows:
“Q. Can you tell the ladies and gentlemen of the Jury on how many days you used that grip hoist that you can recall ?
A. How many days I used it?
Q. Yes, on the Peters Creek Bridge.
A. I don’t recall. It could have been two or maybe three, I don’t know. Like I said, we had different jobs and went different places.” (NT 90a) (Emphasis added)
I believe that this testimony is most significant in that it indicates that Mr. Ciarolla was experienced in operating grip hoists and, consequently, aware of the difficulties he would encounter. The testimony is not sufficient, however, to permit the inference that appellant was injured on the first day he operated the grip hoist for the Peters Creek Bridge construction.
In addition, the Majority states at note 2: “The testimony indicated that grip hoists were also frequently used in much lighter work such as raising scaffolding; and, therefore, they were not specifically designed, or principally used for, lifting objects as heavy as the steel beams.”
I am not able to give such an interpretation to the testimony. On cross-examination, found at page 73a of the record, Mr. Ciarolla was questioned about the capacity of a grip hoist, and responded as follows:
“Q. Do you know what the capacity of a grip hoist is?
A. No, I don’t.
Q. To the best of your knowledge, then, it may be more than that to raise the beams?
A. The capacity of the machine?
Q. Yes.
*148A. I would say — it’s a three-eighths inch cable, a pretty heavy cable, so—
Q. It could have lifted a beam maybe two or three thousand pounds, couldn’t it?
A. I would say so. It could have.
Q. And a beam that was three thousand pounds is certainly much heavier than the beams you were raising, isn’t it?
A. I don’t know. I don’t even know what they weighed.”
The record establishes that the longest beam moved by the grip hoist for the Peters Creek Bridge project weighed 1,700 pounds. The smallest beam weighed 820 pounds. All beams had to be raised approximately 28 feet.
Accepting the fact that a 1,700-pound beam had to be raised, and accepting appellant’s own testimony as to the capacity of a grip hoist, I believe the record adequate to establish that a grip hoist was properly designed for the work involved, and- adequate to perform the task. Moreover, testimony by the appellant, found at page 165 of the original record, establishes that two grip hoists were attached to the heavy beam even though one would have been sufficient to lift the weight. There is nothing on the record which indicates that the grip hoist was unsafe. In fact, appellant testified that the grip hoist was safe, but that some method of lifting the beams could have been used to make the work easier, but not safer:
“Q. And aside from the fact that the work you did was hard work, there was nothing else improper or unsafe about what was done, was there?
A. The grip hoist was unsafe, yes, sir.
By the Court:
Q. In what way was it unsafe, Mr. Ciarolla?
A. The way you were standing.
Q. Not the way you were standing. You said the grip hoist was unsafe. Tell us how.
*149A. No, this grip hoist itself was not unsafe, I wouldn’t say that. You’re referring to the grip hoist itself, am I correct?
By Me. Paeis:
Q. Yes. There was nothing wrong with the grip hoist?
•A. No.
Q. It worked properly?
A. Yes, it did.
Q. It did the job?
A. I guess, yes.
Q. Well, the beams went up, didn’t they?
A. Yes, right.” (NT 126a-127a)
I believe, as a matter of law that the record is devoid qf any evidence of the railroad’s negligence in its use of a grip hoist at the Peters Creek Bridge. Therefore, I do not believe appellant is entitled to a jury trial.
I must concur with the Majority, however, regarding the High Grade Bridge accident. While there is ample evidence of record that appellant was contributorily negligent in failing to inform the railroad of his history of back injuries, I agree with the Majority that in an FELA case, the test of a jury trial “is simply whether the proofs justify with reason the conclusion that the employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers, supra, at 506; Heater v. The Chesapeake and Ohio Railway Company, 497 F.2d 1248, 1246 (7th Cir. 1974). I believe there is a factual issue of negligence by Union Railroad as to the High Grade Bridge accident, which should be decided by a jury.
I would therefore affirm the entry of the compulsory non-suit as to the Peters Creek Bridge cause of action, and reverse such entry and remand for trial as to the High Grade Bridge cause of action.
Van dee Vooet, J., joins in this concurring and dissenting opinion.