The opinion
J. SPENCER BELL, Circuit Judge
(dissenting).
I do not agree that fair-minded jurors could not “honestly differ whether fault of the employer played any part” in Ambold’s injury. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 510 , 77 S.Ct. 443, 450 (1957). Time and time again in these FELA cases the Supreme Court has said that “only when there is a complete absence of probative facts to support the conclusion reached [by the jury] does a reversible error appear.” Basham v. Pennsylvania R.R. Co., 372 U.S. 699, 700-701 , 83 S.Ct. 965 , 10 L.Ed. 2d 80 (1963). I think the existence of a condition which required the plaintiff to take a thirty-one to thirty-five inch step over a seven foot void in the performance of his duties was sufficient evidence of an unsafe place to work to take this case to the jury. The arguments set forth in the majority opinion should have been, and undoubtedly were, made to the jury. The case having been properly submitted to them, I do not think the jury’s verdict should have been disturbed. Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208 , 84 S.Ct. 291 , 11 L.Ed.2d 256 (1963) ; Gallick v. Baltimore & Ohio *35 R.R. Co., 372 U.S. 108 , 83 S.Ct. 659 , 9 L.Ed.2d 618 (1963); Webb v. Illinois Central R.R. Co., 352 U.S. 512 , 77 S.Ct. 451 , 1 L.Ed.2d 503 (1957); Rogers v. Missouri Pacific R.R. Co., supra.
Believing that the judge’s intervention to set aside the verdict was an intolerable invasion of the jury’s province, I would reverse the decision of the district judge and reinstate the jury verdict.