Mateas

Plaintiff-appellant brought action against appellee for damages for personal injuries incurred when he fell from a mule belonging to appellee, herein called the Corporation. The complaint was originally filed in the Superior Court of California, but the case was removed to federal court because of diversity of citizenship. Trial was had without the aid of a jury under a stipulation to that effect. At the close of plaintiff’s case the court granted defendant’s motion to dismiss, and plaintiff appeals.

There is competent evidence to the following effect:

For many years, including the time material herein, the Corporation has maintained a resort hotel on the south rim of the Grand Canyon in Arizona. Transportation of both men and goods from the south rim into the Canyon is by mule over one of three trails, called the Bright Angel, Kaibib, and Yankee trails.

Mules to be employed on the steep, narrow trails of the Canyon are used for one or two years as pack animals, although the packer rides different ones of them back up the trails. When the packer and trail foreman think the mules suitable for such use, they are ridden by guides until considered safe enough to be ridden by…

(concurring).

I agree that on the uncontradicted evidence stated in the majority opinion any finding other than of appellee’s negligent failure to perform an assumed obligation would have to be set aside as “clearly erroneous” within Federal Rules of Civil Procedure rule 52(a).

In breaking to saddle animals living solely on range pasture, their wild power of resentment is well known. After breaking and apparent docility, long periods with range freedom, as in this case, well may renew that resentment on the animal’s first saddling thereafter. The recalcitrancy of the mule to the pressure of human direction has been the theme of poesy and prose of Army teamsters and pioneer “mule skinners.” To the bucking resistance of an aggrieved mare is added the kicking obstinacy of its paternal ass.

That appellee knew appellant’s mule required exceptional treatment is evidenced by the fact that appellant was' required by appellee’s trail master to hold the reins in his hand, while all the other riders left their reins on the pommels of their saddles. This mule alone was not safe just to follow the leader.

As the mule attempted to press ahead of its brethren on the “drop side of the canyon”…

(dissenting).

If the motion made here had been for a directed verdict I would agree that it would be error to grant it. The main opinion —which I confess some difficulty in following — appears to assume that the same principle applies in the case of a motion for a dismissal upon a trial to the court, that is, that the court is obliged to deny the motion if, on the same state of the proof, it would be obliged to deny a motion for a directed verdict in a jury case. The Third Circuit has so held, Federal Deposit Ins. Corporation v. Mason, 115 F.2d 548 ; *994 Schad v. Twentieth Century-Fox Film Corporation, 136 F.2d 991 . This court, however, has heretofore committed itself to a contrary doctrine, Young v. United States, 111 F.2d 823 . So also, and more clearly, has the Seventh Circuit, Gary Theatre Co. v. Columbia Pictures Corporation, 120 F. 2d 891 .

As is recognized by the authorities last above cited, the situation is governed by Rule 41(b), a rule to which no adequate attention is given by the majority. This provides that “after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not…