[Footnote 1]

* Judge Rives was a member of the panel and author of the opinion in the initial decision, 5 Cir., 1968,  389 F.2d 507, and is therefore competent to sit in the rehearing en banc, Allen v. Johnson, 5 Cir., 1968, 391 F.2d 527, 528; 28 U.S. C.A. § 46(c); F.R.A.P. 35, Local Fifth Circuit Rule 12

[Footnote 2]

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).

[Footnote 3]

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).

[Footnote 4]

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

[Footnote 5]

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)

[Footnote 6]

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 Company v. Flagoust, 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

[Footnote 7]

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)

[Footnote 8]

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 see Korte 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."

[Footnote 9]

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)

[Footnote 11]

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)

[Footnote 12]

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."

[Footnote 13]

11 See cases and authorities cited in Part III of this opinion, infra. But see DeParcq, 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)

[Footnote 14]

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

[Footnote 15]

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

[Footnote 16]

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

[Footnote 17]

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").

[Footnote 18]

16 The Court should consider all of the evidence and not just that evidence which supports the non-mover'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 Newhouse, 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., 1961, 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(b): 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 case. 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., 1967, 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. RIVES, Circuit Judge (concurring in part and dissenting in part): PREFACE Decision of this appeal should turn on the Seventh Amendment: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." The question of sufficiency of the evidence to require submission of a case to the jury presents a constitutional problem. Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Ordinarily a court seeks ways to avoid deciding a constitutional question. When the en banc majority by application of the standard which it promulgates reaches the same result as the original panel reached by application of the FELA standard, it may not seem necessary to decide whether the FELA standard differs from the Seventh Amendment standard and, hence, is inapplicable to diversity cases. However, that question was necessary for the panel on original hearing of this case to decide ( see 389 F.2d at 511) and was material to the decision in Planters ( see 380 F.2d at 870 n. 1 and 873 n. 4), and consequently is proper to be ruled on upon this en banc rehearing. Moreover, because of the frequency with which that question arises, it is both proper and advisable for the majority to decide it in the exercise of this Court's supervisory control over the district courts. With deference, I submit that when the majority repudiates for diversity cases the FELA standard and particularly the formula adopted in Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, it commits an error of constitutional proportions which will continue to plague this Court and the district courts of this Circuit until the Supreme Court grants certiorari in this or some future case, and corrects the error. The majority does not "* * * re-state in detail the critical issues of fact on which Shipman based his case, since they are adequately treated in the original opinion herein * * *." While the original opinion is accurate in its statement of the facts, it is not complete because it refers to the briefs of the parties as follows: "There was a mass of additional evidence as to the safety of the place to work, which we find to be accurately summarized on pages 4 to 16 of the appellant's brief. The appellee does not dispute appellant's statement, but files a statement (appellee's brief, pp. 2-4) `supplemental in nature since appellant has set forth a rather lengthy statement in its brief.'"  389 F.2d 507, 510. Moreover, the appellant is not satisfied with the statement of the facts in our original opinion, but spends six pages of its brief on rehearing criticizing that statement and charging that, "There is no placing of the evidence in context with the overwhelming opposition evidence entered by appellant, evidence which would rob appellee's evidence of any persuasiveness." In any event, the importance of this en banc consideration suggests a detailed statement of all of the facts. I therefore attach as an appendix to this opinion a full statement of the facts. This is no occasion for an old common-law lawyer to indulge in a panegyric on the virtues of jury trial; how in our fallible system of human justice it is the best instrument yet devised for the determination of facts, how even its imperfections operate to rub the rough edges off of technical principles of law when they would result in unjust verdicts, how it is constantly improving with the progress of our jurisprudence and with the advance of education and enlightenment, how it gives the citizen a proud and rightful place in the administration of justice, and tends to make real our utopian dream of a "government of the people, by the people, and for the people." There are many who do not agree with my almost reverential attitude toward jury trial, but this is no occasion for a debate on that subject, because our forefathers wrote into our Constitution the right of trial by jury in both criminal and civil cases. Moreover, as to civil cases with which we are here concerned, the Supreme Court has written at length in the leading case of Galloway v. United States, supra. With deference, I submit that the polished and scholarly majority opinion has one fundamental weakness. It downgrades the Seventh Amendment. Toward the end of the part of the opinion captioned "II. FELA (FEDERAL EMPLOYERS' LIABILITY ACT) STANDARD FOR SUFFICIENCY OF EVIDENCE IS INAPPLICABLE," it mentions: "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." I do not agree. My text is that the FELA standard is based upon the Constitution. That proposition is virtually ignored by the majority. It is my hope that a single judge armed with the Constitution can persuade a majority. Certainly his oath compels him to try. With those prefatory remarks, I proceed to a discussion of the issues in the same order as the majority en banc opinion. I. "FEDERAL RATHER THAN STATE TEST IS APPLICABLE" The majority concludes Part I of its opinion with the statement: "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." As said in Wright v. Paramount-Richards Theatres, 5 Cir. 1952, 198 F.2d 303, 305: "* * * in federal courts the principle just adverted to [the Erie doctrine] must give way to the overriding consideration that the federal court is bound by the Seventh Amendment to the Constitution of the United States." The dichotomy is the same as that expressed by the Supreme Court in Simler v. Conner, 1963,  372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691: "In diversity cases, of course, the substantive dimension of the claim asserted finds its source in state law * *, but the characterization of that state-created claim as legal or equitable for purposes of whether a right to jury trial is indicated must be made by recourse to federal law." I concur in Part I of the majority opinion. II. FELA (FEDERAL EMPLOYERS' LIABILITY ACT) STANDARD FOR SUFFICIENCY OF EVIDENCE IS APPLICABLE Perhaps in no field of the law is the cleavage between substance and procedure more sharply drawn than in the difference between the substantive elements of a claim or cause of action and the remedy by jury trial. That is necessarily true because the substantive rights and duties are prescribed by contract, by the common law, or by statute, while the right of jury trial is preserved by the Seventh Amendment. The Amendment accomplishes that separation simply by addressing itself to each separate fact - "* * * no fact tried by a jury * * *" - and that applies irrespective of the substantive nature of the claim. The claim may arise out of either contract or tort. The variety of tort duties is almost without limit. For example, the railroad owes to a trespasser only the duty not to willfully or wantonly inflict injury or not to negligently injure him after discovering his peril; in its role as a common carrier, the railroad owes to its passenger the highest degree of care; as an employer under the FELA, the railroad is liable to its employee for any negligence, however slight, which contributes to cause the injury. Rogers v. Missouri Pacific Railroad Co., 1957,  352 U.S. 500, 508, 77 S.Ct. 443, 1 L.Ed. 2d 493. Under bills of lading and under various other contracts, the extent of variation in the railroad's duties is infinite for the railroad's duty is measured by the terms of the particular contract and the applicable public policy. Breach of duty in any one of the capacities just mentioned may result in a "suit at common law" against the railroad. In every one of these varied cases where the value in controversy exceeds twenty dollars, the right of either the plaintiff or the defendant to a jury trial is preserved by the Seventh Amendment and no fact of whatever description can be re-examined in any federal court except according to the rules of the common law. In each and all of these varied cases, when the substantive claim and the remedy are considered separately the same standard is applicable to test the sufficiency of the evidence for submission of the case to a jury. It goes without saying that the result of the application of that standard varies according to the substantive elements of the claim. For example, it is rare that a trespasser can produce evidence warranting submission of his case to a jury, and, at the other extreme, it is rare that an employee in an FELA action fails to produce such evidence. The reason lies not in any difference in the standard of sufficiency of the evidence to preserve the right of trial by jury but in the vast differences between the substantive elements of the torts. That is strikingly illustrated by a very recent Ohio State case (decided December 24, 1968), Mills v. Pennsylvania N.Y. C. Transp. Co., 16 Ohio St.2d 97, 243 N.E.2d 99. Syllabus No. 1 prepared by the court reads: "State procedural law and federal substantive law govern the disposition of actions brought in state courts pursuant to the provisions of the Federal Employers' Liability Act (Section 51 et seq., Title 45, U.S. Code)." The Ohio Court summarized the facts and holdings of several of the United States Supreme Court cases interpreting the Federal Employers' Liability Act, and then said: "These cases demonstrate how strictly the rule of the Rogers case (that any employer negligence, however slight, which contributes to cause the injury is actionable) is to be applied in all F.E.L.A. cases. 1 "1. We have held that the use of the words, `in the slightest degree,' or the phrase, `in any degree,' in connection with contributory negligence in a charge to the jury in an action under state substantive law constitutes reversible error. See Bahm v. Pittsburgh & Lake Erie Rd. Co., 6 Ohio St.2d 192, [217 N.E.2d 217]. "In the instant case, the plaintiff alleges (and there is evidence in the record to support) two bases for railroad negligence: "(1) There was inadequate lighting at the place of the injury, creating a hazardous situation. "(2) There was coal and other debris lying around the immediate vicinity where plaintiff was working. "This case, in light of the United States Supreme Court cases interpreting the Federal Employers' Liability Act, should have been allowed to go to the jury, and accordingly we reverse the judgment of the Court of Appeals. "We do this reluctantly, and invite the United States Supreme Court to consider how closely the strict application of the rule of the Rogers case approaches a scheme of workman's compensation, substituting the jury in place of a board of experts and allowing an open-end award in lieu of a fixed statutory amount. The amount of damages awarded by juries in F.E. L.A. actions often appears exorbitant when compared to the slight degree of employer negligence which contributed to cause the employee's injury. 2 We believe that it would be appropriate for the United States Supreme Court to carefully review its former decisions, in light of the fact that the rule of the Rogers case, as it has been applied, imposes legal responsibilities on railroad employers that the Congress of the United States never intended." "2. The jury awards in the cases discussed were as follows: Rogers, $40,000; Gallick, $625,000; Webb, $15,000; McBride, $51,000 and Harris, $25.000. 16 Ohio St.2d at 104, 105, 243 N.E.2d at 103, 104. It is like gilding the lily for me to add anything to Chief Judge Tuttle's masterful analysis and decision in Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir. 1967,  380 F.2d 869, 871-875. The en banc majority opinion, however, leaves me no alternative. In his opinion for the Court in Planters, Judge Tuttle did not so much as mention Wilkerson v. McCarthy, 1949,  336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. Only by remote implication can it be asserted that Judge Tuttle adopted an apparent holding of Wilkerson that on motions for directed verdict and judgment notwithstanding the verdict, the court should consider only the evidence and inferences which support the non-mover's case. Wilkerson was first cited along that line by this Court in Helene Curtis Industries, Inc. v. Pruitt, 1967, 385 F.2d 841, 850, a case in which I participated. I am not convinced that the Helene Curtis' reference to Wilkerson was erroneous. That case simply employs the same language as Wilkerson, and when properly understood, as will be presently developed, that language is not erroneous. But I must frankly confess that in my opinion for the Court on the original hearing of the instant case, I made what I now acknowledge to be an erroneous contrast between the Alabama State rule and the federal rule by considering in isolation the following sentence in Wilkerson v. McCarthy, 336 U.S. at p. 57, 69 S.Ct. at p. 415: "It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given." Boeing Company v. Shipman, 5 Cir. 1968,  389 F.2d 507, 511. The criticism which that sentence has provoked arises, I submit, from a misunderstanding which becomes apparent when the sentence is read in the totality of the factual context out of which it arose. The Wilkerson facts were simple. The railroad had constructed a wheel-pit in which mechanics who changed wheels could get under train cars. Over this pit was extended a 20" wide plank which was not firmly set or attached and which had been permitted to become oily and slippery. At one time the plank was used by all employees working in the yard. Subsequently, the railroad erected posts and chains ostensibly obstructing access to the plank to all employees except those who worked in the pit itself. Wilkerson, a switchman who had no duties in the wheel-pit area, in taking a short cut, crossed over one of the chains and attempted to walk over the plank. He fell and was injured. In his FELA suit, he attributed his injuries to the negligence of the railroad in failing to maintain a safe place to work. The railroad responded by admitting the existence of the greasy plank over the pit and acknowledging that Wilkerson had sustained the injuries he described. The carrier, nevertheless, argues that an alternate safe passage to the other side of the pit was readily available at a very short distance from the plank and that Wilkerson was the real negligent party in using the chained-off plank. The crucial issue was not the question of contributory negligence. Rather, there arose a factual dispute as to whether the construction of the chains across the plank in fact stopped all unauthorized persons from using the plank and thereby absolved the carrier of liability. Wilkerson and another witness testified that, in fact, the chains did not stop anyone from crossing the pit via the greasy plank and that it was a "common practice" to cross the plank even after erection of the chain. 336 U.S. at 58-60 notes 3, 4, 69 S.Ct. 413. Witnesses for the railroad testified to the contrary that, after the chains were put up, only persons working in the pit area on train wheels used the plank. 336 U.S. at 59-60, 69 S.Ct. 413. Immediately following the sentence which I mistakenly quoted in isolation, Mr. Justice Black added: "Viewing the evidence here in that way it was sufficient to show the following * * *." 336 U.S. at 57, 69 S.Ct. at 415. Then, after an elaborate examination of the facts, as based on testimony by both sides in the controversy, he framed the issue in Wilkerson as follows: "Thus the conflict as to continued use of the board as a walkway after erection of the chains was whether the pit workers alone continued to use it as a walkway [the carrier evidence], or whether employees generally so used it. While this left only a very narrow conflict in the evidence, it was for the jury, not the court, to resolve the conflict." 336 U.S. at 60, 69 S.Ct. at 416. Consideration of this comment framing the issue, in light of the actual review immediately before it of testimony ascribed to witnesses for both sides, makes it apparent that all of the evidence was examined, though determination of the sufficiency of Wilkerson's evidence to withstand the carrier's motion necessitated a "look only to the evidence and reasonable inferences which tend to support the case of [Wilkerson] against whom a peremptory instruction has been given." Cf. Blume, supra note 5, at 577-578, citing Southern Ry. Co. v. Walters, 1931, 284 U.S. 190, 194, 52 S.Ct. 58, 76 L.Ed. 239. Contrary to my original interpretation of the Wilkerson case, viz., that it compelled the trial court to view only the non-movant's evidence, it is but one of a line of cases all applying essentially the same sufficiency test dictated by the Seventh Amendment. While confessing one error in my opinion for the Court on the original hearing of this case, let me admit another. I erred in stating that "The continued validity of that holding is subject to serious doubt if the standards applied in FELA cases must also be applied in diversity cases." After more thorough research, I entertain no doubt that the so-called "scintilla" test has been firmly rejected by the Supreme Court and other federal courts in all jury cases including FELA cases. This firm rejection is illustrated by the authorities collected in footnotes 8 and 9 to the majority opinion herein. I submit that the FELA standard for sufficiency of the evidence to require submission of the case to a jury is a constitutional standard. There can be no doubt that an action for damages under the FELA is a "suit at common law" as that expression is used in the Seventh Amendment, for it was early settled that, "The phrase `common law,' found in this clause, is used in contradistinction to equity, and admiralty and maritime jurisprudence." Parsons v. Bedford, Breedlove & Robeson, 1830, 28 U.S. (3 Pet.) 266, 274 [433, 445] 7 L.Ed. 732. That case has been consistently followed in later decisions which have made clear that the right of jury trial under the Seventh Amendment does not depend upon the source of the claim, whether from common law or from state or federal statute, but solely on whether the claim should be characterized as legal rather than equitable or in admiralty. The Supreme Court has held that while the Seventh Amendment does not apply to a FELA action brought in a State court, it does apply to such an action brought in a federal court. Mr. Justice Douglas, concurring in Harris v. Pennsylvania R. Co., supra note 13 said: "The difference between the majority and minority of the Court in our treatment of FELA cases concerns the degree of vigilance we should exercise in safeguarding the jury trial - guaranteed by the Seventh Amendment and part and parcel of the remedy under this Federal Act when suit is brought in state courts." However, the view of the majority of the Supreme Court seems to be that the Seventh Amendment is not applicable to the States either ex proprio vigore or because a "part and parcel of the remedy" under the FELA. See Minneapolis & St Louis R. R. v. Bombolis, supra note 12. The majority of the Supreme Court bases reversal of directed verdict judgments by State courts in FELA cases not on the Seventh Amendment but on a purpose to assure uniform enforcement of the substantive provisions of the Act. As said in Dice v. Akron, C. & Y. R. Co., 1952, 342 U.S. 359, 363, 72 S.Ct. 312, 315, 96 L.Ed. 398: "We have previously held that `The right to trial by jury is "a basic and fundamental feature of our system of federal jurisprudence"' and that it is `part and parcel of the remedy afforded railroad workers under the Employers' Liability Act.' Bailey v. Central Vermont R. Co., 319 U.S. 350, 354 [63 S.Ct. 1062, 1064, 87 L.Ed. 1444]. We also recognized in that case that to deprive railroad workers of the benefit of a jury trial where there is evidence to support negligence `is to take away a goodly portion of the relief which Congress has afforded them.' It follows that the right to trial by jury is too substantial a part of the rights accorded by the Act to permit it to be classified as a mere `local rule of procedure' for denial in the manner that Ohio has here used. Brown v. Western R. Co. [of Ala.], 338 U.S. 294 [70 S.Ct. 105, 94 L.Ed. 100]." Since, as we have seen, the Supreme Court itself has settled that the Seventh Amendment applies to a FELA action brought in a federal court, the next question is whether a different kind of jury trial is prescribed by the FELA itself either expressly or implicitly as "part of the remedy." Nowhere in the statute does the word "jury" appear. The reason for that omission is stated in a footnote in Rogers v. Missouri Pacific R. Co., 1957,  352 U.S. 500, 508 n. 18, 77 S.Ct. 443, 449, 1 L.Ed.2d 493, which can be best understood in connection with the sentence of the text to which that footnote is appended: "The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence. "18. While the primary reason was a protest against undue comment by trial judges as to the facts, the original 1906 Act provided; `All questions of negligence and contributory negligence shall be for the jury.' 34 Stat. 232. Hearings before Senate Committee on Interstate Commerce on H.R. 239, 59th Cong., 1st Sess. 68-69. The inclusion in the 1908 statute of another provision, `All questions of fact relating to negligence shall be for the jury to determine,' was proposed but not adopted. The view prevailed that this would be surplusage in light of the Seventh Amendment embodying the common-law tradition that fact questions were for the jury. Hearings before Senate Committee on Education and Labor on S. 5307, 60th Cong., 1st Sess. 8-9, 45-46." That footnote clearly indicates that the jury trial which is "part and parcel of the remedy" in FELA actions in federal courts is the same jury trial guaranteed by the Seventh Amendment. A similar thought is expressed in Mr. Justice Douglas' concurring opinion in Harris v. Pennsylvania R. Co., quoted, supra, 361 U.S. p. 15, 80 S.Ct. 22. Those cases do not stand alone. Other Supreme Court decisions have established that it is the jury trial guaranteed by the Seventh Amendment which is "part and parcel of the remedy" in FELA actions in federal courts. Indeed, it seems an unwarranted affront to suggest that the Supreme Court, by mere fiat, has invented for FELA cases a kind of jury trial found neither in the Constitution nor in the Act. Moreover, I submit that neither the Congress nor the Supreme Court can constitutionally give a broader role to the jury in FELA cases than that guaranteed by the Seventh Amendment. That is true because of the principle announced by the Supreme Court in a different context in Herron v. Southern Pacific Co., 1931,  283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857: "In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. This discharge of the judicial function as at common law is an essential factor in the process for which the Federal Constitution provides." Again, speaking through Mr. Justice Van Devanter in Baltimore & C. Line v. Redman, 1935, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636, the Court said: "The right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted. The Amendment not only preserves that right but discloses a studied purpose to protect it from indirect impairment through possible enlargements of the power of reexamination existing under the common law, and to that end declares 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.' "The aim of the Amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court. 4 "4. Walker v. New Mexico & So. Pac. R. Co., 165 U.S. 593, 596 [17 S.Ct. 421, 41 L.Ed. 837]; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 497-499 [51 S.Ct. 513, 75 L.Ed. 1188]; Dimick v. Schiedt, 293 U.S. 474, 476, 485-486 [55 S.Ct. 296, 79 L.Ed. 603.]" The principle has been most clearly and succinctly expressed by Judge Phillips speaking for the Tenth Circuit in Diederich v. American News Co., 1942, 128 F.2d 144, 146: "The power of the judge to pass upon questions of law is just as much an essential part of the process of trial by jury at common law guaranteed by the Seventh Amendment, as is the power of the jury to pass upon questions of fact." Other opinions so indicating are quoted in the margin. The first FELA passed in 1906 contained a provision that all questions of negligence and contributory negligence shall be submitted to the jury. See Appendix B, p. 387, infra. In holding that Act unconstitutional, some inconclusive comments were made upon that provision both in Mr. Justice White's opinion for the Court, and in Mr. Justice Moody's dissenting opinion. 18 Profiting from those expressions, the Congress in considering the second or 1908 FELA struck a similar provision following the argument of Senator Rayner. His argument appears in Appendix B at pp. 403-404, infra, and is so clear and cogent that I quote from it. "As to the other clause: "`All questions of fact relating to negligence shall be for the jury to determine.' "I desire to be perfectly frank. I think it ought to go out. Why? Because it does not change the law as it exists to-day, in my judgment, and if it did attempt to change the law it would be clearly unconstitutional. In other words, the seventh amendment protects without any exception whatever, all trials at common law under Federal jurisdiction, as established in England and in this country at the date of the adoption of that amendment. "It was the prerogative of the court at the date of the adoption of that amendment to charge the jury as to questions of law after considering the facts bearing upon those questions. It was the province of the court to determine whether a case should be withdrawn from the jury by reason of the fact that the plaintiff had not in his evidence brought himself within the terms of the law. It was the province of the court, and it is and must be to-day, to set aside a verdict for want of sufficient evidence Any one of those prerogatives or others that could be mentioned which a provision of the statute of Congress attempted to take from the presiding judge of a Federal court trying a common law case would be in violation of the seventh amendment. The seventh amendment has not added to or taken from the prerogatives of a judge presiding over a court of law a single power that existed at the date of its adoption. It simply preserved the status quo as it then existed, and the authorities on that are perfectly clear." An FELA case has furnished the formula in most general use by federal courts in all types of cases for determining the absence of a controverted issue of fact. As said in 5 Moore, Federal Practice § 50.02 [1], pp. 2320-2322: "Until Brady v. Southern Railroad was decided by the Supreme Court in 1943, the federal courts had not clearly opted between the standard that permitted a court to direct a verdict on the basis of a strong preponderance of the evidence 15 and the `reasonable man' type of standard indicated above. In the Brady case, the Court announced the standard in the following terms: 16 "`When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. By such direction of the trial the result is saved from the mischance of speculation over legally unfounded claims.' Since that time, although they have used many different formulations, the federal courts have been reasonably consistent in the application of the Brady rule, that a verdict may properly be directed when, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict. 17 But where there is conflicting evidence, or there is insufficient evidence to make only a `one-way' verdict possible, a directed verdict is improper. 18 "14. (1943) 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239. "15. See, e. g., Pennsylvania RR. v. Chamberlain (1933) 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; McBaine, Trial Practice: Directed Verdicts; Federal Rule (1943) 31 Calif.L.Rev. 454, 460. "16. 320 U.S. at 479-480 [64 S.Ct. at 234-235]. "17. The cases supporting this conclusion are almost infinite in number. The citations that follow are extensive but not exhaustive. They provide a sampling of circuits and varieties of factual situations. [Citations omitted.] "18. These cases should be read in connection with those in the preceding footnote, since they represent only the other side of the same coin. Again, no attempt has been made to exhaust the authorities. Instead, the cases merely represent an abundant sampling of the authorities among different circuits and with different factual bases. [Citations omitted.]" In Continental Ore Co. v. Union Carbide & Carbon Corp., 1962, 370 U.S. 690, 696 n. 6, 701, 82 S.Ct. 1404, 8 L.Ed.2d 777, a private antitrust case, the Supreme Court cited an FELA case, Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L.Ed. 520, at two different places in its opinion as indicating the rule on sufficiency of the evidence for a case to go to the jury. In at least three diversity cases from this Circuit, the Supreme Court has entered per curiam reversals when this Court has substituted its views of the sufficiency of the evidence for those of the jury. It need not be apprehended that juries will get from under proper influence or control of trial judges when the FELA standard is applied in diversity cases. That is true for several reasons. First, as has been argued, the extreme results in FELA cases come about because of the substantive elements of the tort rather than from the application of the jury standard. Second, jurors listen to trial judges, and the federal district judges have the power to advise them on the facts. "In many cases the Supreme Court of the United States has recognized the power of the trial judge to advise the jury on the facts, but has, at the same time, required a clear separation of law from fact, and has insisted that the judge tell the jurors that they were not bound by the judge's opinion of the facts. 48 "48. McLanahan v. Universal Ins. Co., 1 Pet. (26 U.S.) 170 [7 L.Ed. 98] (1828); Tracy v. Swartwout, 10 Pet. (35 U.S.) 79 [80, 9 L.Ed. 354] (1836); Games v. Dunn, 14 Pet. (39 U.S.) 322 [10 L.Ed. 476] (1840); Starr v. United States, 153 U.S. 614, 14 S.Ct. 919 [38 L.Ed. 841] (1894); Quercia v. United States, 289 U.S. 466, 53 S.Ct. 689 [698, 77 L.Ed. 1321] (1933); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223 [78 L.Ed. 381] (1933)." Blume, supra note 7, at 567, 568. Third, as has been discussed in our original opinion in this case, 389 F.2d at 513, 514, 20 the district courts retain extremely broad discretion to grant new trials. In the early days of the common law, the remedy for a jury finding contrary to the evidence was to grant a new trial. That continues to be the safest remedy, less subject to reversal, and encroaching least on the constitutional fact-finding province of the jury. Moreover, it keeps the decision where it belongs, in the hands of the district judge who has seen and heard the witnesses testify and observed their demeanor on the stand. A more general use of new trial instead of directed verdict would save the appellate judges many precious judicial man hours in these days of exploding dockets. Strange to say, however, we do not hear that factor mentioned by appellate court judges when they are reaching out for power to substitute their views for those of the jury. The burden of controlling jury verdicts rests primarily on the district judges and, except when they substitute their views for those of a jury, interference by the Courts of Appeals should be extremely rare. Even less often should the Supreme Court be called on to review the sufficiency of the evidence. If exercised in many cases it becomes an impossible burden. That has often been noted by the dissenting justices in FELA cases. For example, in Wilkerson v. McCarthy, 1948,  336 U.S. 53, 66, 69 S.Ct. 413, 93 L. Ed. 497, Mr. Justice Frankfurter said: "Considering the volume and complexity of the cases which obviously call for decision by this Court, and considering the time and thought that the proper disposition of such cases demands, I do not think we should take cases merely to review facts already canvassed by two and sometimes three courts even though those facts may have been erroneously appraised." See also Schulz, Adm'x v. Pennsylvania R. Co., 1956, 350 U.S. 523, 527, 76 S.Ct. 608, 100 L.Ed. 668. I have noted, supra note 19, three diversity cases in which the Supreme Court reversed this Circuit per curiam when we sought to substitute our views for those of the jury. However, most such cases never reach the Supreme Court. As said by Mr. Justice Black dissenting in Galloway v. United States, 1942, 319 U.S. 372, 407, 63 S.Ct. 1077, 1096, 87 L.Ed. 1458: "So few of these cases come to this Court that, as a matter of fact, the judges of the District Courts and the Circuit Courts of Appeal are the primary custodians of the Amendment." On the same page Mr. Justice Black wisely observed that, "Our duty to preserve this one of the Bill of Rights may be peculiarly difficult, for here it is our own power which we must restrain." On the preceding page he had remarked that, "The language of the Seventh Amendment cannot easily be improved by formulas." 319 U.S. at 406, 63 S.Ct. at 1095. On the other hand, Judges both trial and appellate are conscientious in the performance of their duties, and they will follow a formula or standard prescribed by higher authority when it is clear and certain. Such formulas have been evolved in the FELA cases and especially in Lavender v. Kurn, supra, formulas which are of inestimable aid to the district judges and the judges of the Courts of Appeals as "the primary custodians of the Amendment." 319 U.S. at 407, 63 S.Ct. at 1096. We grievously err when we discard those formulas in diversity cases. To recapitulate, I submit that the same standard of sufficiency of the evidence to require submission of a case to the jury applies in diversity cases as in FELA cases, for the following reasons: (1) The extreme results reached in FELA cases is because of the substantive elements of the tort, and not because of any difference in the standard of sufficiency of the evidence to preserve the right of trial by jury; (2) an action under the FELA is a "suit at common law" as that expression is used in the Seventh Amendment, and carries the right of jury trial under that Amendment; (3) the kind of jury trial intended by the FELA as a "part and parcel of the remedy" is none other than the Seventh Amendment right of jury trial; (4) we cannot assume that the Supreme Court, by mere fiat, has invented for FELA cases a kind of jury trial found neither in the Act nor in the Constitution; (5) neither the Congress nor the Supreme Court can constitutionally give a broader role to the jury in FELA cases than that guaranteed by the Seventh Amendment; (6) the Supreme Court and other federal courts have applied the FELA standard in diversity cases and other kinds of cases; (7) trial judges retain adequate influence over and control of juries through their admitted powers to advise on the facts and to grant new trials; (8) the formulas evolved in the FELA cases and especially in Lavender v. Kurn, supra, operate to restore the historic common-law function of the jury in passing on disputed questions of fact. III. "THE SUBSTANTIAL EVIDENCE OR REASONABLE MAN TEST" Sitting en banc, a majority of this Court "promulgate[s]" what it considers to be "the standard" (emphasis added) for determining the sufficiency of evidence necessary to require submission of a case to the jury. For three reasons, I disagree with this newly promulgated formula. First, the majority expressly overrules the Supreme Court's own sufficiency test set out in Lavender v. Kurn, supra, 327 U.S. at 653, 66 S.Ct. 740, and rejects Planters Mfg. Co. v. Protection Mut. Ins. Co., 5 Cir. 1967,  380 F.2d 869, 874, which adopted the Lavender standard. The majority, in so doing, commits constitutional error, for the Lavender test represents but one articulation of several constitutional formulas used by the Supreme Court. Second, the majority simply has no authority to "promulgate" any one standard when the Supreme Court itself has prescribed a number of them, and has left the door open for further formulas to be developed. As has been mentioned, supra pp. 389-390, perhaps the most concise and well-accepted Supreme Court explanation of the standard is contained in Brady v. Southern R. Co., 1943, 320 U.S. 476, 479-480, 64 S.Ct. 232, 88 L.Ed. 239. See 5 Moore, Federal Practice ¶ 50.02 [1], p. 2320 (2d ed. 1968) (noting that "the federal courts have been reasonably consistent in the application of the Brady rule.") The wisdom of our forefathers embodied in the Seventh Amendment is expressed in a single sentence. Its limits are stated as "the right of trial by jury" to be re-examined only "according to the rules of the common law." Many formulas have been used in the past and more will be employed in the future to explain the meaning of those phrases. No "promulgation" of this Court can limit the freedom of thought and expression of the district judges, and it is sheer folly for us to make such an effort. I cannot help wondering what this Court would do should some independent-minded district court judge choose to follow one of the Supreme Court statements of the standard instead of the standard announced by the majority. There is nothing we could do and we should never assume such an untenable position by adopting a single formula. Third, I disagree with the new standard "established" by the majority because it is at least misleading in its use of the term "substantial," if it is not erroneous. The word "substantial," used in its legal sense, can equally well connote either a qualitative or a quantitative meaning. This distinction was implicitly recognized and effectively avoided by the decision in Planters. See 380 F.2d at 874. In closing, too, I note that, notwithstanding all the variations which the Supreme Court has played on its sufficiency theme, I have been unable to find a single instance in which the Supreme Court has used "substantial" in any of its articulations of the constitutional standard. What then do I offer as an alternative to the majority formula? With the Supreme Court I must conclude that "the mere difference in labels used to describe this [sufficiency] standard * * * cannot amount to a departure from `the rules of the common law' which the [Seventh] Amendment requires to be followed." Galloway v. United States, 1943, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458. While some may consider a single formula for the standard to be laudable in the name of uniformity, I think it is unnecessary. I seek to achieve the purpose of the Seventh Amendment - reservation of the resolution of factual disputes to the jury alone - not to establish one or more preferable formulas for the standard. And this purpose is perhaps best amplified in the language of Lavender and Planters. If I had to choose a single formula, my choice would lie among three: (a) the language of Lavender; (b) the " Brady rule," quoted heretofore on pages 389-390 and again referred to on page 393; (c) the same formula as that for granting a summary judgment, quoted in footnote 28, supra. IV. CONSIDERATION OF THE MERITS I concur in the judgment of affirmance, but for the reasons expressed in the original Boeing opinion. CONCLUSION To correct our previous errors, the Court should modify Boeing to the extent that it incorporates a misconception of Wilkerson v. McCarthy, supra, with respect to what evidence is reviewed, should withdraw the expression of doubt as to the continued validity of the holding in Reuter v. Eastern Air Lines, supra, and should reiterate the fundamental validity of Planters Manufacturing Co. v. Protection Mut. Ins. Co., supra. I therefore concur in part and dissent in part. APPENDIX A FACTS Daniel C. Shipman, at the time of trial, was 47 years old, married for twenty years, and the father of six children. (R. 49-50, 331). Prior to his employment with Boeing, he had established a record of regular employment for over thirty years, 5 with only two interruptions: a 1955 industrial back injury which required surgical correction (R. 57-58) and a one-week hospitalization in May 1964 stemming from chronic acute bronchitis. (R. 59, 259). His family doctor had first treated his bronchitis in 1961. (R. 259, 296, 308). 5. From 1936 through 1955, he was employed by Firestone Tire & Rubber Co. in several machine shop capacities, including supervisory positions. (R. 51-53). This employment was briefly interrupted by service with the U.S. Coast Guard from 1942-1944 and again in 1952. (R. 52-53). Following a 1955 industrial injury, he owned Master Craft Boats, a Tampa boat-building enterprise employing 25 or more employees, from 1956-1958. (R. 53, 54, 149). He moved in 1958 to Huntsville, Alabama, where he owned from 1959-1962 Custom Wood Products, a cabinet making firm which employed 10-12 craftsmen. (R. 54). During the same period, he also worked part-time for KVK Corp., a woodwork manufacturer. (R. 54-55). After selling his business, he took a position as shop foreman and machine supervisor for TEC Productions, a subcontractor for NASA equipment work. (R. 56). He quit his job after 1˝ years because of personal difficulties with his supervisor. (R. 463). Immediately thereafter, he was employed as a precision scale model maker by Hayes International from August 1964 until December 17, 1964, the day before he commenced working for the Boeing Company. Although he had spent his entire working life around machine shops, the evidence of his pre-Boeing experience and proficiency as a spray painter was in serious conflict. 6 However, considering all evidence presented, it would appear that any pre-Boeing spray paint experience was minimal and secondary when compared with his principal previous responsibilities as a machinist, model maker, and shop foreman. 6. Boeing introduced Shipman's pre-employment job résumé (Def. Ex. #1) which contained the following special comment: "Throughout my past years of employment I have had experience in any type of paint and spray equipment." (R. 152-154). In addition, Boeing witness McDonald, Shipman's supervisor at TEC Productions, described him as his "best qualified" spray painter. (R. 456-458). McDonald stated that Shipman had painted 40-50 hours over a 1˝ year period with TEC. (R. 462). Shipman, himself, disputed any significant prior spray painting experience, knowledge or proficiency, stating that he was familiar with the equipment only as a "mechanical item" (R. 118) and that the most he had ever spray painted was "five or ten minutes at a time, showing someone * * * what I wanted done * * *." (R. 118, 147, 153). He refuted the résumé statement as having been written by Ed Lawrence, his Boeing supervisor, who was "trying to get me in because he didn't have an opening in my qualification." (R. 152). Lawrence denied any such authorship. (R. 411). Irrespective of his prior spray painting experience, Shipman was hired by Boeing, at least nominally, as a "special project mechanic," with responsibilities for building precision panels and performing general machine shop work. (R. 60, 317). 7 In actuality, he worked solely (R. 61, 79) or almost entirely (R. 412-413) as the only (R. 112) spray painter in Boeing's 20-30 man Huntsville, Alabama, model shop (R. 61), from December 18, 1964, through March 8, 1965. (R. 50). 8 7. Boeing, in its answer to written interrogatories, described Shipman's job as Special Project Mechanic "A" and his duties and responsibilities as: "Working with planning, developing, fabricating, assembling and operational checking of mechanical, hydraulic and structural systems to be incorporated in mobile training devices and other special projects." (Plaintiff's Ex. #9, R. 317). 8. Shipman left work on the afternoon of March 8, 1965, was hospitalized that evening (R. 106-110); and, except for two brief reappearances at the model shop in April and May (R. 452, 455-456), he never returned to work. Boeing formally terminated his employment on July 23, 1965. (R. 51, 317). Shipman's regular work week was 40 hours. (R. 61). Boeing records reflected Shipman worked a total of 434 regular hours plus 29 hours of overtime during the 3˝ month period (R. 186); Shipman, however, stated that he had averaged approximately 18˝ hours of overtime per week (R. 79, 107), a claim rejected by his Boeing supervisor (R. 439). The Working Areas The Boeing model shop was located on the third floor of a converted mill-type structure and measured approximately 30×85 feet. (R. 61-62, 65). Within the shop was about a 12×15 to 20×20 foot area marked off by yellow lines on the floor and designated as the spray painting area. (R. 69, 85, 451). This area contained an approximately 6×6×8 foot, standard production model, three-sided DeVilbis spray paint booth with an open front. (R. 94, 414; photograph, Def. Ex. #3). The entire model room was forced-air fed for hot or cool air conditioning by means of an overhead duct work system with 24×6 inch grilled outlets. (R. 143, 474). Shipman remembered only three to four outlets in the system, one of which was located approximately 40-50 feet away from him. (R. 142-143). Boeing diagrams and testimony indicated the system had six such outlets. (Def. Ex. #11, R. 474). Shipman recalled five or six doors, one of which was in his working area, leading out of the main model shop. (R. 143). With the exception of one 16×16 inch fresh air damper leading from the roof, the air was under pressure and escaped only if the door leading into the lobby was open. (R. 474, 475). The spray paint booth was rear-end fan-exhausted to the outside atmosphere by means of a 16-18 inch pipe leading through a window. (R. 94-95, 414, 468-469). Fan size estimates varied from unknown by Shipman (R. 94) to 24 inches by a Boeing witness R. 468). In addition, Shipman was directed by his supervisor (R. 97, 99), with the cognizance of the fire marshal (R. 98-99, 444), to paint railings in a back room he said was unlighted, unheated, and unventilated. (R. 74, 97). Shipman stated that the back room painting job required "a couple of hours at a time two or three times two different days." (R. 98). His supervisor countered that the task required only one day in late January (R. 432-433), that the room could be ventilated by a bank of windows opened by a single means (R. 431; see R. 475), and that Shipman on the particular date painted for only 30 minutes with a fan in the room directed toward some broken out windows. (R. 431). The Equipment; Painting Procedure Shipman used an air-operated, one-quart capacity, production type spray gun (R. 89), a type commonly used in industry. (R. 89, 413). His method of operation was to suspend the article to be painted on a wire stretched across the open front of the spray booth (R. 96, 415) or enter the booth itself (R. 97) and to spray toward the filter panels along the rear of the booth. (R. 110). Provided the article to be sprayed was small enough and the exhaust fan was on, the excess paint and fumes sprayed should have been removed from the model shop environment. (R. 110, 416, 430). Shipman claimed, however, that he painted more items larger than the booth could accommodate than he did booth-sized items (R. 79-81, 102, 146). Moreover, he claimed that he had been instructed by his supervisor on several occasions to paint with the booth exhaust fan purposely shut off so as not to draw machine dust into the booth and onto the paint surface. (R. 101). His supervisor rebutted, however, that while Shipman may have painted in the booth with the fan off, he never did so more than two minutes. (R. 425). Furthermore, the general practice was for Shipman to turn on the fan as he began to spray paint an item. (R. 417). He stated that Shipman had occasionally been instructed to turn off the fan after he had finished painting in order to avoid drawing machine shop dust over the freshly painted items drying in the booth. (R. 426). Moreover, the supervisor stated most of the spray painting Shipman did was on instrument panels for NASA and the Marshall Space Flight Center which averaged 2 × 19 × 24 inches in dimension and were painted in the booth. (R. 412-413; see Def. Ex. #8, 9, panel work orders). Shipman's actual time spent spray painting for Boeing was estimated from as low as two to three hours a day (by his supervisor) (R. 427) to all day with only momentary cleaning and preparat