The Boeing Company v. Daniel C. Shipman

411 F.2d 365, 1969 U.S. App. LEXIS 12944

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 7, 1969
• Docket: 24588
• Status: Published

Opinions

AINSWORTH, Circuit Judge:

The importance of formulating a proper standard in federal court to test the sufficiency of the evidence for submission of a case to the jury, in connection with motions for a directed verdict and for judgment notwithstanding the verdict,¹ caused us to place this Alabama diversity personal injury suit en banc.

Shipman, an employee of Boeing, sued his employer for damages under the common law and the Alabama Employers’ Liability Act (Tit. 26, § 326, Code of Ala., 1940), as a result of injuries he claims were received in the course of his work at Boeing’s Huntsville, Alabama, plant. He was a spray painter and alleged that his employer was negligent in failing to furnish him with a reasonably safe place to work which was not properly ventilated to exhaust paint fumes; also, that he was not furnished with a mask to prevent inhalation of paint, nor with prd-tective gloves for the handling of harmful chemicals, and that he was not warned of the dangers of his employment. He contended that he contracted lead poisoning, polyneuritis, dermatitis, and an aggravation of pre-existing bronchitis. Boeing denied any misconduct which might have caused Shipman’s injuries and pled contributory negligence and assumption of risk and that the Alabama Workmen’s Compensation Act barred an action for damages.

In the prior opinion in this case the Court said:

“On the question of Boeing’s alleged misconduct, the evidence is weak, especially in view of the short time that Shipman worked for Boeing. The evidence as to causal connection between the claimed unsafe conditions of Ship-man’s place of work and the ailments which he suffered can be held sufficient to sustain the jury’s verdict only by the application of an extremely liberal standard.” (389 F.2d at 511.)

Boeing’s motions for a directed verdict during the trial and for judgment notwithstanding the verdict thereafter were denied by the District Judge, and the decision of a panel of this Court affirmed the lower Court. We hold that the opinion of a panel of this Court in the present case (389 F.2d 507) contained errors of law, which we overrule. Nevertheless, we affirm because the evidence was sufficient to create a question for the jury under the standard we have established, and the District Court, therefore, properly denied the motions for a directed verdict and for judgment notwithstanding the verdict.

We will not restate in detail the critical issues of fact on which Shipman based his case, since they are adequately treated in the original opinion herein, except to say that Shipman had been working for three months as a spray painter for Boeing and testified that the room in which he was working was not properly equipped with an exhaust system, that he was not provided with a respirator mask, that he inhaled paint particles as a result thereof, and that he also incurred injuries to his hands because of the failure to furnish him with gloves. The medical evidence was not conclusive, and the facts relating to the cause of Ship-man’s ailments were seriously disputed by Boeing. However; there was sufficient evidence of failure to provide a reasonably safe place to work and a face mask and gloves to require submission of the case to the jury under the standard we hereafter promulgate in this opinion.

I.

FEDERAL RATHER THAN STATE TEST IS APPLICABLE

It is well settled in this Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question.² Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 448; Revlon, Inc. v. Buchanan, 5 Cir., 1959, 271 F.2d 795, 81 A.L.R.2d 222; Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869; Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841.³

In Planters, supra, Judge Tuttle exhaustively discussed this issue and pointed out (380 F.2d at 870-871) that although the Supreme Court had not yet resolved the question in favor of the federal test,⁴ that Court had said in Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958):

“It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts.”

See also Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963).

Federal courts must be able to control the fact-finding processes by which the rights of litigants are determined in order to preserve “the essential character” of the federal judicial system. Of course, we do not contend that this control will not affect state-created substantive rights in some cases. Ultimately, however, the integrity of our fact-finding processes must outweigh considerations of uniformity. Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Note, State Trial Procedure and the Federal Courts: Evidence, Juries, and Directed Verdicts Under the Erie Doctrine, 66 Harv.L.Rev. 1516, 1525 (1953). Thus, we agree with the original opinion and reaffirm our holding, often repeated, that a federal rather than a state test is the proper one.

II.

FELA (FEDERAL EMPLOYERS’ LIABILITY ACT) STANDARD FOR SUFFICIENCY OF EVIDENCE IS INAPPLICABLE

In the original opinion in this case the Court held that the standard to be applied by federal courts in diversity cases, to determine whether there is sufficient evidence to submit the case to the jury on motions for a directed verdict and for judgment notwithstanding the verdict, is the same as that in FELA (45 U.S.C. § 51 et seq.) and Jones Act (46 U.S.C. § 688) cases and that the “question has now been settled in this Circuit by the holding in Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir. 1967, 380 F.2d 869, * * * that federal courts must apply the same standards employed in FELA cases to diversity cases in determining sufficiency of evidence to raise a question of fact for the jury. * * *” (389 F.2d at 513.) ⁵ Thus, in the present case the District Judge was obliged under the Planters principle to apply the same standard employed in FELA eases to the alleged negligent acts of Boeing and the extent and nature of Shipman’s injuries in determining the sufficiency of evidence to create questions for the jury. The Planters principle, with which we disagree, is expressed as follows: “It is only when there is a complete absence of probative facts to support the conclusion reached that the jury’s judgment may be ignored.” (380 F.2d at 874.) The Court based this statement upon language in the Supreme Court’s decision in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 590 L.Ed. 916 (1946), an FELA case, in which that Court stated, “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. * * * ” (327 U.S. at 653, 66 S.Ct. at 744.)

FELA cases, however, are statutory negligence actions. The Act provides (45 U.S.C. § 51) that the employer shall be liable for damages “ * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees * * of the carrier. The Supreme Court held in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957), that in FELA cases there is presented “ * * * the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.” In Rogers the Supreme Court also said (352 U.S. at 506-507, 77 S.Ct. at 448-449):

“Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.”

See also Note, Rule 50(b): Judgment Notwithstanding the Verdict, 58 Colum. L.Rev. 517 (1958).

The Supreme Court further said in Rogers (352 U.S. at 506, 77 S.Ct. at 448):

“Under this statute [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” (Emphasis supplied.)

Slight negligence, necessary to support an FELA action, is defined as “a failure to exercise great care,” and that burden of proof, obviously, is much less than the burden required to sustain recovery in ordinary negligence actions. Prosser, Law of Torts § 34, p. 186 (3d ed. 1964). (Emphasis supplied.) ⁶

Beyond the fact that a statutory action under the FELA significantly differs from a common law negligence action in terms of the standard of proof, it is clear that the congressional intent in enacting the FELA was to secure jury determinations in a larger proportion of cases than would be true of ordinary common law actions. In other words, “trial by jury is part of the remedy” in FELA cases. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 360, 82 S.Ct. 780, 784, 7 L.Ed.2d 798 (1962). As Mr. Justice Douglas stated in his concurring opinion in Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 420, 93 L.Ed. 497 (1949),

“The Federal Employers’ Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations. * * *

“That purpose was not given a friendly reception in the courts. In the first place, a great maze of restrictive interpretations were engrafted on the Act * * *. In the second place, doubtful questions of fact were taken from the jury and resolved by the courts in favor of the employer. * * * And so it was that a goodly portion of the relief which Congress had provided employees was withheld from them.

“[Since 1943, however,] * * * The historic role of the jury in performing that function * * * [of passing on disputed questions of fact] is being restored in this important class of cases.”

See also Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 508-509, 77 S.Ct. 443, 449-450, 1 L.Ed.2d 493 (1957). See generally Griffith, The Vindication of a National Public Policy Under the Employers’ Liability Act, 18 Law & Contemp.Prob. 160 (1953). Thus, as the Eighth Circuit has stated,

“Under the [Federal Employers’ Liability] Act, the right of the jury to pass upon the question of fault and causality must be most liberally viewed. * * * the jury’s power to engage in inferences must be recognized as being significantly broader than in common law negligence actions.”

Chicago, Rock Island and Pacific Railroad Co. v. Melcher, 8 Cir., 1964, 333 F.2d 996, 999-1000.⁷

Though we have heretofore adopted in Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869, the FELA test of the sufficiency of evidence to create a jury question as a uniform federal standard fashioning a rule of general application, we now reject the Planters principle and hold that the FELA test is peculiar to that kind of case as a consequence of the statute itself and is accordingly not applicable in non-FELA jury trials.

As a corollary to the unique statutory context of FELA actions, it is apparent that in the general run of cases federal cpur-t-s--h-av.ej_ej£-cted...the legendaxyJ.‘.scintillaIL-test. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 (1930).⁸ In 5 Moore, Federal Practice ¶ 50.02[1], p. 2324 (2d ed. 1968), we find the following pertinent commentary:

“The federal courts are generally committed to a rejection of the so-called ‘scintilla rule,’ by which a court might not direct a verdict so long as there is any evidence in support of the proposition tendered by the party against whom the motion is directed. An argument might well be made that such a rule survives, in fact, if not in name, in FELA and Jones Act cases.20 [20 See e. g., Harlan, J., dissenting in Ferguson v. Moore-McCormack Lines (1957) 352 U.S. 521, 563-564, 77 S.Ct. 457, 480, 1 L.Ed.2d 511, 519.] If so, its application is limited to those areas and cannot be extended beyond those special domains.”

We agree with Professor Moore’s analysis and conclusion that the FELA test should not be employed as a vehicle to re-establish the “scintilla” rule which has been so firmly rejected by the federal judiciary.⁹

Although the Supreme Court has not answered the question of law,¹⁰ no Circuit Court of the United States, other than the Fifth Circuit, has held that the FELA test of sufficiency of evidence is applicable in non-FELA cases.¹¹ The First Circuit expressly rejected the FELA standard in Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 n. 6, stating that such cases had to be considered “on their own bottom,” and the Court further said, “We do not appear to have considered this question ourselves, but a number of other circuits have reached this result without even discussion.” [Citing, inter alia, Rhodes v. Metropolitan Life Insurance Co., 5 Cir. 1949, 172 F.2d 183, cert. denied, 337 U.S. 930, 69 S.Ct. 1495, 93 L.Ed. 1738.] See Gibson v. Elgin, Joliet & Eastern Railway Company, 7 Cir., 1957, 246 F.2d 834 (On Petition for Rehearing); Cahill v. New York, New Haven & Hartford R. R. Co., 2 Cir., 1955, 224 F.2d 637 (Frank J., dissenting).

Finally, the Seventh Amendment of the United States Constitution providing for trial by jury does not require, either expressly or impliedly, that the test of sufficiency of evidence to create a jury question in a non-FELA federal case be the same as in an FELA case. The tendency of some federal courts, at times, to use overly broad language or to cite indiscriminately FELA cases in nonFELA situations does not obviate this conclusion.¹² See, e. g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-701, 82 S.Ct. 1404, 1411, 8 L.Ed.2d 777 (1962); Harris v. Pennsylvania Railroad Co., 361 U.S. 15, 16, 80 S.Ct. 22, 23, 4 L.Ed.2d 1 (1959) (Mr. Justice Douglas, concurring); Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 3 Cir., 1963, 325 F.2d 2, 22.

The standard provided by the Supreme Court and Circuit Courts in FELA cases for sufficiency of evidence to create a jury question is proper under the Federal Employers’ Liability Act, and with this we do not disagree. But in non-FELA federal cases which are not based on statute, the formulation of the test of sufficiency of evidence is substantially different.

III.

THE SUBSTANTIAL EVIDENCE OR REASONABLE MAN TEST We now determine what the proper test should be in determining whether there is sufficient evidence to submit a case to the jury in connection with motions for directed verdict in a federal court trial.¹³ The standard we announce is the result of a thorough study of the numerous prior decisions of this Court which have dealt with the subject.¹⁴ Our task is compounded by the fact that many legal writers and commentators have used different formulations in propounding these standards and the language utilized by them remains diverse and occasionally troublesome. See 5 Moore, Federal Practice ¶ 50.02 [1], p. 2330 (2d ed. 1968); Note, Rule 50(b): Judgment Nowithstanding the Verdict, 58 Colum.L.Rev. 517, 522 n. 45; Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555 (1950).¹⁵

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and infer-enees, and determine the credibility of witnesses.¹⁶

Since the Court is sitting en banc in this matter, we overrule all prior decisions of this Court insofar as they conflict with this opinion, special reference being made to those portions of the original opinion of the Court in the present case and in Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869, which do not conform.

IV.

CONSIDERATION OF THE MERITS

Despite our holding that the original opinion of the panel in this case is based on erroneous principles of law, we have concluded that the facts of record sufficently meet the test we have now formulated to require affirmance of the District Court’s ruling which denied the motions for directed verdict and judgment notwithstanding the verdict and submitted the case to the jury for its verdict. The jury could fairly conclude from all of the evidence, though disputed, that Boeing was negligent in failing to provide Shipman with a reasonably safe place to work and with a serviceable face mask and adequate gloves. Also, that Shipman was obliged to work in an area where the booth exhaust fan was either off or inadequate to siphon off paint fumes in the area in which he was working. Though the expert medical proof is not entirely reliable in determining the causal connection between Shipman’s working conditions and his ailments, uncontroverted lay testimony showed that Shipman was not suffering from polyneuritis or dermatitis prior to working for Boeing. Although he had suffered from bronchitis previously, the jury could conclude from the evidence that the condition was aggravated by Boeing’s failure to provide a face mask and adequate ventilation.

Applying the standards we have set forth in this opinion and considering all the evidence in the record, we hold that the District Judge properly denied the motions for directed verdict and judgment notwithstanding the verdict and committed no error in sending the case to the jury,

Affirmed,

1 . Rule 50 of the Federal Rules of Civil Procedure states in pertinent part:

“(a) Motion for Directed Verdict: When Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

“(b) Motion for Judgment Notwithstanding the Verdict. 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. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

“The propriety of granting or denying a motion for a directed verdict is tested both in the trial court and on appeal by the same rule. * * * ” 2B Barron and Holtzoff, Federal Practice and Procedure § 1075, p. 378 (Wright ed. 1961), and cases cited therein. See also Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053 (1964).

2 . The Circuits are divided on the question of whether federal courts should apply a federal rather than a state test in determining the sufficiency of the evidence for submission to the jury, Dick v. New York Life Insurance Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 926, 3 L.Ed.2d 935 (1959), 5 Moore, Federal Practice ¶ 50.06, pp. 2348-2349 (2d ed. 1968); and, indeed, some Circuits have decisions on both sides of this, question. 5 Moore, Federal Practice ¶ 50.06, p. 2349 (2d ed. 1968). Compare, e. g., Rumsey v. Great Atlantic & Pacific Tea Company, Inc., 3 Cir., 1968, 408 F.2d 89 (reheard en banc on November 25, 1968) and Rowe v. Pennsylvania Greyhound Lines, 2 Cir., 1956, 231 F.2d 922, and Spruill v. Boyle-Midway, Incorporated, 4 Cir., 1962, 308 F.2d 79, with Woods v. National Life and Accident Insurance Company, 3 Cir., 1965, 347 F.2d 760, and Reynolds v. Pegler, 2 Cir., 1955, 223 F.2d 429, and Pinehurst, Inc. v. Schlamowitz, 4 Cir., 1965, 351 F.2d 509.

The following cases are representative of decisions adopting a state standard: Rowe v. Pennsylvania Greyhound Lines, 2 Cir., 1956, 231 F.2d 922; Gutierrez v. Public Service Interstate Transp. Co., 2 Cir., 1948, 168 F.2d 678; McDermott v. John Hancock Mutual Life Insurance Co., 3 Cir., 1958, 255 F.2d 562; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908; Gilreath v. Southern Railway Company, 6 Cir., 1963, 323 F.2d 158; Trivette v. New York Life Insurance Company, 6 Cir., 1960, 283 F.2d 441; Wieloch v. Rogers Cartage Company, 7 Cir., 1961, 290 F.2d 235; Nattens v. Grolier Society, 7. Cir., 1952, 195 F.2d 449; Hanson v. Ford Motor Company, 8 Cir., 1960, 278 F.2d 586; Continental Can Company v. Horton, 8 Cir., 1957, 250 F.2d 637.

On the other hand, there are a large number of cases adopting a federal standard. See, e. g., Reynolds v. Pegler, 2 Cir., 1955, 223 F.2d 429; Woods v. National Life and Accident Insurance Company, 3 Cir., 1965, 347 F.2d 760; Lind v. Schenley Industries, Inc., 3 Cir., 1960, 278 F.2d 79; Pinehurst, Inc. v. Schlamowitz, 4 Cir., 1965, 351 F.2d 509; Burcham v. J. P. Stevens & Co., 4 Cir., 1954, 209 F.2d 35; Shirey v. Louisville & Nashville Railroad Company, 5 Cir., 1964, 327 F.2d 549; Kirby Lumber Corporation v. White, 5 Cir., 1961, 288 F.2d 566; ABC-Paramount Records, Inc. v. Topps Record Distributing Co., 5 Cir., 1967, 374 F.2d 455; Fruit Industries, Inc. v. Petty, 5 Cir., 1959, 268 F.2d 391; Gudgel v. Southern Shippers, Inc., 7 Cir., 1967, 387 F.2d 723; F. W. Woolworth Co. v. Carriker, 8 Cir., 1939, 107 F.2d 689; Safeway Stores v. Fannan, 9 Cir., 1962, 308 F.2d 94; Phipps v. N. V. Nederlandsche Amerikaansche S. M., 9 Cir., 1958, 259 F.2d 143; Christopherson v. Humphrey, 10 Cir., 1966, 366 F.2d 323; Basham v. City Bus Company, 10 Cir., 1955, 219 F.2d 547, 52 A.L.R.2d 582. In some instances, federal courts have found the federal and state standards to be nearly identical, or at least the same result to obtain under the particular facts of the case, and in this way the problem of choosing between state and federal tests was avoided. See, e. g., Metropolitan Coal Company v. Johnson, 1 Cir., 1959, 265 F.2d 173; Stephan v. Marlin Firearms Company, 2 Cir., 1965, 353 F.2d 819; Pritchard v. Liggett & Myers Tobacco Company, 3 Cir., 1961, 295 F.2d 292; Price v. Firestone Tire and Rubber Company, 6 Cir., 1963, 321 F.2d 725; Ozark Air Lines, Inc. v. Larimer, 8 Cir., 1965, 352 F.2d 9; Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274 (Missouri, Arizona, and federal tests found to be substantially the same); Miller v. Brazel, 10 Cir., 1962, 300 F. 2d 283.

The commentators find the federal test controlling. 2B Barron and Holtzoff, Federal Practice and Procedure § 1072, p. 367 n. 5 (Wright ed. 1961). See 5 Moore, Federal Practice ¶ 50.06, p. 2350 (2d ed. 1968); Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053, 1058 (1964); Note, State Trial Procedure and the Federal Courts: Evidence, Juries, and Directed Verdicts under the Erie Doctrine, 66 Harv.L.Rev. 1516, 1525 (1953).

3 . See also Ricketson v. Seaboard Airline Railroad Company, 5 Cir., 1968, 403 F.2d 836; Brown v. Seaboard Coastline R. R., 5 Cir., 1968, 405 F.2d 601; Prassel Enterprises v. Allstate Ins. Co., 5 Cir., 1968, 405 F.2d 616; Cater v. Gordon Transport, Inc., 5 Cir., 1968, 390 F.2d 44; Keating v. Jones Development of Missouri, Inc., 5 Cir., 1968, 398 F.2d 1011; North River Insurance Company v. Hubbard, 5 Cir., 1968, 391 F.2d 863; Vandercook and Son, Inc. v. Thorpe, 5 Cir., 1968, 395 F.2d 104; Equitable Life Assurance Society of United States v. Fry, 5 Cir., 1967, 386 F.2d 239; Marshall v. Mintz, 5 Cir., 1967, 386 F.2d 415.

4 . Dick v. New York Life Insurance Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 926, 3 L.Ed.2d 935 (1959); Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964).

5 . The opinion further pointed out that Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869, had been followed by this Circuit in five recent cases, namely; Helene Curtis Industries Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841; Liberty Mutual Insurance Com pany v. Falgoust, 5 Cir., 1967, 386 F.2d 248; Equitable Life Assurance Society of United States v. Fry, 5 Cir., 1967, 386 F.2d 239; Marshall v. Mintz, 5 Cir., 1967, 386 F.2d 415; and Remington Arms Company v. Wilkins, 5 Cir., 1967, 387 F.2d 48.

6 . For a general discussion of the legislative history of the FELA, which illuminates the congressional purpose to alter the common law rules on liability in this area, see Griffith, The Vindication of a National Public Policy Under the Federal Employers’ Liability Act, 18 Law & Contemp. Prob. 160 (1953).

7 . See also Zegan v. Central Railroad Company of New Jersey, 3 Cir., 1959, 266 F.2d 101, 77 A.L.R.2d 768; Borgen v. Richfield Oil Corporation, 9 Cir., 1958, 257 F.2d' 505; and Cahill v. New York, New Haven & Hartford R. R. Co., 2 Cir., 1955, 224 F.2d 637, 640, 641 (Frank, J., dissenting) :

“I assume, arguendo, that the inference needed to support the verdict would not suffice in a suit not brought under the Federal Employees’ Liability Act. But the more recent Supreme Court decisions make it clear that, under that Act, the jury’s power to draw inferences is greater than in common-law actions.” [Citing, inter alia, Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946) ; Jesionowski v. Boston & M. R. R„ 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416 (1947); Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Smalls v. Atlantic Coast Line Railroad Company, 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740 (1955) ; Stone v. New York, C. & St. L. R. Co., 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441 (1953).]

“ * * * And gee i£or(;e v. New York, N. H. & H. R. Co., 2 Cir., 191 F.2d 86, 88, and Ruddy v. New York Central R. Co., 2 Cir., 224 F.2d 96, where we recognized that the Supreme Court had widened the permissible scope of jury inferences in F.E.L.A. litigation. See also Louisville & N. R. Co. v. Botts, 8 Cir., 173 F.2d 164,166.”

8 . See also, e. g., Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct 232, 88 L.Ed. 239 (1943); Baltimore & O. R. Co. v. Postom, 1949, 85 U.S.App.D.C. 207, 177 F.2d 53; M. C. Carlisle & Co. v. Cross, 1 Cir., 1967, 386 F.2d 672; Beaty Shopping Center, Inc. v. Monarch Ins. Co. of Ohio, 4 Cir., 1963, 315 F.2d 467; White v. New York Life Ins. Co., 5 Cir., 1944, 145 F.2d 504; Hogan v. United States, 5 Cir., 1963, 325 F.2d 276; Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443; Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666; Lovas v. General Motors Corp., 6 Cir., 1954, 212 F.2d 805; Hubert v. May, 7 Cir., 1961, 292 F.2d 239; Hawley v. Alaska Steamship Company, 9 Cir., 1956, 236 F.2d 307; Christopherson v. Humphrey, 10 Cir., 1966, 366 F.2d 323. See generally Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555 (1950); 5 Moore, Federal Practice ¶ 50.02 [1] (2d ed. 1968); Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053 (1964); James, Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va.L.Rev. 218 (1961).

9 . We note that the test of sufficiency of the evidence in FELA cases is very much like the Alabama rule which provides that if there is a scintilla of evidence a jury question is presented. See, e. g., Huff v. Vulcan Life & Accident Insurance Co., 281 Ala. 615, 206 So.2d 861 (1968); Scott v. Southern Coach & Body Co., 280 Ala. 670,197 So.2d 775 (1967).

10 . 2B Barron and Holtzoff, Federal Practice and Procedure § 1075, pp. 401, 404 (Wright ed. 1961).

“It is extremely important to know whether the decisions [in FELA and Jones Act cases] are confined to the particular statutory actions in which they have been handed down * * *. * * * * *

“A decision by the Supreme Court, clearly stating which view it takes as to the scope of the FELA and Jones Act decisions, would be of helpful guidance to the lower federal courts.”

11 . See cases and authorities cited in Part III of this opinion, infra. But see De-Parcq, The Supreme Court and the Federal Employers’ Liability Act, 1958-1959 Term, 44 Minn.L.Rev. 707 (1960); Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053 (1964); Green, Protection of Jury Trial in Diversity Cases Against State Invasions, 35 Tex.L.Rev. 768 (1957). For a summary of the arguments in favor of applying the FELA rule to non-FELA cases, see 2B Barron and Holtzoff, Federal Practice and Procedure § 1075 (Wright ed. 1961).

12 . But see Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053 (1964).

13 . The directed verdict practice does not offend the Seventh Amendment. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555 (1950). But see Galloway v. United States, 319 U.S. 372, 396, 63 S.Ct. 1077, 1090, 87 L.Ed. 1458 (Mr. Justice Black, dissenting); Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 374 U.S. 865, 83 S.Ct. 43 (1963). See generally 5 Moore, Federal Practice ¶ 50.02 [2] (2d ed. 1968) and cases cited therein.

14 . See, e. g., Ricketson v. Seaboard Airline Railroad Co., 5 Cir., 1968, 403 F.2d 836; Keating v. Jones Development of Missouri, Inc., 5 Cir., 1968, 398 F.2d 1011; Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841; Liberty Mutual Insurance Company v. Falgoust, 5 Cir., 1967, 386 F.2d 248; Equitable Life Assurance Society of United States v. Fry, 5 Cir., 1967, 386 F.2d 239; Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443; Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666; White v. New York Life Ins. Co., 5 Cir., 1944, 145 F.2d 504.

15 . See, e. g., Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 (1930) (evidence must be “overwhelmingly on one side”) ; Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943) (“mere speculation” not allowable); Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943) (directed verdict proper only where “there can be but one reasonable conclusion”); Muldrow v. Daly, 1964, 117 U.S.App.D.C. 318, 329 F.2d 886 (“no reasonable man could reach” a contrary verdict); Magnat Corporation v. B&B Electroplating Co., 1 Cir., 1966, 358 F.2d 794 (“lack of substantial evidence” necessary to direct a verdict); Woods v. National Life and Accident Insurance Company, 3 Cir., 1965, 347 F. 2d 760 (evidence must permit only “one reasonable conclusion”); Crosby v. Meredith, 4 Cir., 1962, 300 F.2d 323 (“substantial evidence” required); Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666 (“conflict in substantial evidence” necessary); Remington Arms Company, Inc. v. Wilkins, 5 Cir., 1967, 387 F.2d 48 (there must be “a rational basis in the record”); Ford Motor Company v. Zahn, 8 Cir., 1959, 265 F.2d 729 (“all or substantially all of the evidence” must be on one side); McCollum v. Smith, 9 Cir., 1964, 339 F.2d 348 (question is whether evidence “would rationally support a verdict” for the non-moving party); Champion Home Builders v. Shumate, 10 Cir., 1967, 388 F.2d 806 (“evidence must all be one way”); Hyman and Newhouse, Standards for Preferred Freedoms: Beyond the First, 60 Nw.L.Rev. 1, 15 (1965) (no submission to jury unless “substantial, or high probability of the plaintiff’s proposition, or that there be a substantially even chance of its truth”).

16 . The Court should consider all of the evidence„and not just that eviljacrwKicli supports _thg_nnnjnave£s case.

The Supreme Court in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L. Ed. 497 (1949), an FELA case, held that all the evidence should not be considered in a motion for a directed verdict. However, the Courts of Appeals have tended to reach the conclusion that all the evidence should be considered, “distinguishing Wilkerson on the ground that FELA cases are sui generis.” 5 Moore, Federal Practice ¶ 50.02[1], p. 2329 (2d ed 1968). See Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 n. 6; Magnat Corporation v. B&B Electroplating Co., 1 Cir., 1966, 358 F.2d 794, 797 n.; Muldrow v. Daly, 1964, 117 U.S.App.D.C. 318, 329 F.2d 886, 888; Stief v. J. A. Sexauer Manufacturing Co., 2 Cir., 1967, 380 F.2d 453, 455 (“ * * * the function of this court on appellate review is to examine the entire record to determine whether there were any jury questions.”); Carroll v. Seaboard Air Line Railroad Company, 4 Cir., 1967, 371 F.2d 903, 904 (by inference); Rhodes v. Metropolitan Life Ins. Co., 5 Cir., 1949, 172 F.2d 183, 185; Pinkowski v. Sherman Hotel, 7 Cir., 1963, 313 F.2d 190, 192; Christopherson v. Humphrey, 10 Cir., 1966, 366 F.2d 323, 325 (by inference). See generally Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555 (1950). But see Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053,1060-1061 (1964).

The evidence must be considered in the light and with all reasonable inferences most favorable to the party opposed to the motion.

See, e. g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962); Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720 (1930); Alden v. Providence Hospital, 1967, 127 U.S.App.D.C. 214, 382 F.2d 163, 165; Muldrow v. Daly, 1964, 117 U.S.App.D.C. 318, 329 F.2d 886, 888; Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 n. 6; O’Connor v. Pennsylvania Railroad Company, 2 Cir., 1962, 308 F.2d 911, 914; Pritchard v. Liggett & Myers Tobacco Company, 3 Cir., 1961, 295 F. 2d 292, 295; Beaty Shopping Center, Inc. v. Monarch Ins. Co. of Ohio, 4 Cir., 1963, 315 F.2d 467, 469; Richmond Television Corporation v. United States, 4 Cir., 1965, 354 F.2d 410, 414; Round Rock Independent Sch. Dist. v. First National Ins. Co., 5 Cir., 1963, 324 F.2d 280, 281; Herron v. Maryland Casualty Company, 5 Cir., 1965, 347 F.2d 357, 358; Minton v. Southern Railway Company, 6 Cir., 1966, 368 F.2d 719, 720; Dorin v. Equitable Life Assurance Society of United States, 7 Cir., 1967, 382 F.2d 73, 77; Czap v. Marshall, 7 Cir., 1963, 315 F.2d 766, 768; Breeding v. Massey, 8 Cir., 1967, 378 F.2d 171, 176; Ozark Air Lines, Inc. v. Larimer, 8 Cir., 1965, 352 F.2d 9, 11; McCollum v. Smith, 9 Cir., 1964, 339 F.2d 348, 349; United States v. Holland, 9 Cir., 1940, 111 F.2d 949, 953; United States v. Fenix and Scisson, Inc., 10 Cir., 1966, 360 F.2d 260, 262; Christopherson v. Humphrey, 10 Cir., 1966, 366 F.2d 323, 325-326.

See generally 2B Barron and Holtzoff, Federal Practice and Procedure § 1075 (Wright ed. 1961); 5 Moore, Federal Practice ¶ 50.02 [1] (2d ed. 1968); Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex. L.Rev. 1053, 1066 (1964).

If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. 5 Moore, Federal Practice ¶ 50.02 [1] (2 ed. 1968) and cases cited therein.

See, e. g., McWilliams v. Shepard, 1942, 75 U.S.App.D.C. 334, 127 F.2d 18, 19; O’Connor v. Pennsylvania Railroad Company, 2 Cir., 1962, 308 F.2d 911, 915; McCracken v. Richmond, Fredericksburg & Potomac R. Co., 4 Cir., 1957, 240 F. 2d 484, 488; Ricketson v. Seaboard Airline Railroad Co., 5 Cir., 1968, 403 F.2d 836, 839; Minton v. Southern Railway Company, 6 Cir., 1966, 368 F.2d 719, 720; Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274, 282; Champion Home Builders v. Shumate, 10 Cir., 1967, 388 F.2d 806, 808. See generally 2B Barron and Holtzoff, Federal Practice and Procedure, § 1075 (Wright ed. 1961); Hyman and New-house, Standards for Preferred Freedoms: Beyond the First, 60 Nw.L.Rev. 1, 15 (1965).

If there is substantial evidence opposed to the motions, of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

See, e. g., Alden v. Providence Hospital, 1967, 127 U.S.App.D.C. 214, 382 F.2d 163, 165; Muldrow v. Daly, 1964, 117 U.S.App.D.C. 318, 329 F.2d 886, 888; M. C. Carlisle & Co. v. Cross, 1 Cir., 1967, 386 F.2d 672, 674-675; Magnat Corporation v. B&B Electroplating Co., 1 Cir., 1966, 358 F.2d 794, 797 n.; Julien J. Studley, Inc. v. Gulf Oil Corporation, 2 Cir., 1967, 386 F.2d 161, 162-163; Diapulse Corporation of America v. Birtcher Corporation, 2 Cir., 1966, 362 F.2d 736; Pritchard v. Liggett & Myers Tobacco Company, 3 Cir., 1981, 295 F. 2d 292, 295; Nuckoles v. F. W. Woolworth Company, 4 Cir., 1967, 372 F.2d 286, 288; American Casualty Company of Reading, Pa. v. Gerald, 4 Cir., 1966, 369 F.2d 829, 833; Lyle v. R. N. Adams Construction Co., 5 Cir., 1968, 402 F.2d 323; Ricketson v. Seaboard Airline Railroad Co., 5 Cir., 1968, 403 F.2d 836; 839; Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666, 668-669; Hogan v. United States, 5 Cir., 1963, 325 F.2d 276, 277; Minton v. Southern Railway Company, 6 Cir., 1966, 368 F.2d 719, 720; Taylor v. Cirino, 6 Cir., 1963, 321 F.2d 279, 281; Berry Refining Company v. Salemi, 7 Cir., 1965, 353 F.2d 721, 722; Pinkowski v. Sherman Hotel, 7 Cir., 1963, 313 F.2d 190, 192; Compton v. United States, 8 Cir., 1967, 377 F. 2d 408, 411-412; Schultz & Lindsay Construction Company v. Erickson, 8 Cir., 1965, 352 F.2d 425; Wong v. Swier, 9 Cir., 1959, 267 F.2d 749, 752; Peter Kiewit Sons Company v. Clayton, 10 Cir., 1966, 366 F.2d 551, 554; Adams v. Powell, 10 Cir., 1965, 351 F.2d 273, 274.

See generally Note, Rule 50(h): Judgment Notwithstanding the Verdict, 58 Colum.L.Rev. 517 (1958); 5 Moore, Federal Practice ¶ 50.02 (2d ed. 1968); 2B Barron and Holtzoff, Federal Practice and Procedure § 1075 (Wright ed. 1961); Wright, Federal Courts § 94; Hyman and Newhouse, Standards for Preferred Freedoms: Beyond the First, 60 Nw.L. Rev. 1 (1965); Bagalay, Directed Verdicts and the Right to Trial by Jury in Federal Courts, 42 Tex.L.Rev. 1053, 1060 (1964).

A mere scintilla of evidence is insufficient to present a question for the jury. See cases and authorities cited in note 8, supra.

The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the ease. See, e. g., Simmonds v. Capital Transit Co., 1945, 79 U.S.App.D.C. 371, 147 F. 2d 570, 571; Crosby v. Meredith, 4 Cir., 1962, 300 F.2d 323, 325; McCracken v. Richmond, Fredericksburg & Potomac R. Co., 4 Cir., 1957, 240 F.2d 484, 488; Employers Mutual Casualty Co. of Des Moines v. Mosqueda, 5 Cir., 1963, 317 F.2d 609, 613; Hogan v. United States, 5 Cir., 1963, 325 F.2d 276, 277; Compton v. United States, 8 Cir., 1987, 377 F. 2d 408, 411-412; Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274, 281; United States v. Holland, 9 Cir., 1940, 111 F.2d 949, 953; United States v. Hess, 10 Cir., 1965, 341 F.2d 444, 447 n.; Continental Baking Company v. Utah Pie Company, 10 Cir., 1965, 349 F.2d 122, 147.

Motions for directed verdict and judgment n.o.v. should not be granted only when there is a complete absence of probative facts to support a jury verdict. See Part II of this opinion, supra, and cases cited therein.

It is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Rainey v. Gay’s Express, Inc., 1 Cir., 1960, 275 F.2d 450, 451; O’Connor v. Pennsylvania Railroad Company, 2 Cir., 1962, 308 F.2d 911, 915; Woods v. National Life and Accident Insurance Company, 3 Cir., 1965, 347 F.2d 760, 768; Boleski v. American Export Lines, Inc., 4 Cir., 1967, 385 F.2d 69, 74; Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666, 668-669; Necaise v. Chrysler Corporation, 5 Cir., 1964, 335 F.2d 562, 567; Isaacs v. American Petrofina, 5 Cir., 1966, 368 F.2d 193, 196; Monroe Auto Equipment Co. v. Heckethorn Mfg. & Sup. Co., 6 Cir., 1964, 332 F.2d 406, 412; Dorin v. Equitable Life Assurance Society of United States, 7 Cir., 1967, 382 F.2d 73, 77; Ahmann v. United Air Lines, Inc., 8 Cir., 1963, 313 F.2d 274, 281; Shafer v. Mountain States Tel. & Teleg. Co., 9 Cir., 1964, 335 F.2d 932, 934; Continental Baking Company v. Utah Pie Company, 10 Cir., 1965, 349 F. 2d 122, 147.