*1 DUSEN, Before VAN GIBBONS Judges. ROSEN, JAMES Circuit OPINION OF THE COURT Judge. GIBBONS, Circuit personal injury diversity In this plaintiff appellant, the in the district granting court, appeals order from an motion for a directed verdict renewed the end of the entire trial on issue liability. Fed.R.Civ.P. 50. proceeding on a liability under the Restatement strict (Second) (1965) adopted Torts 402A by Pennsylvania its common law. Zern, 220 A.2d 853 Webb v. Pa. ap- (1966). injuries occurred when employed journeyman pellant, lineman working pole, top was, while ground when the thrown to the Kearney-National Cor- He sued Inc., poration, the manufacturer joined allegedly Company as a Pennsylvania Electric party defendant. third *2 segments question roughly Appellant’s in occurred of the case was fastening fitting point pole at the where the bolt broke because passed Kearney fitting by piece T second of the which was manufactured through fitting pole.1 guy in by The T nor- attached and which a wire was gave way position pole, mal with two arms under a stress rested to the pole align- anticipated within flush with and which was normal vertical range.' question fitting a ment it. is T The with After accident the piece fitting consisting shaped east iron In each cross- of of an arm device. through only place T is a hole still in bar of the there flush with the was fitting pole. (Exhibit pass 7). piece which bolts to fasten the The con- P. upright pole. sisting up- a In the the T of arm T wooden the other and the through larger right longer pole which a a was no flush there is hole with passes The bolt cable. but had been outward flush to connect bent from alignment pole a crack in arm with the claimed defect one the direction the T. which the strain of the cable would applied. have been pole The was at a where electric There T angle lines an acute transmission years was ten old five to time angle turn the acute turn. Because of accident, fittings the expected and that such were placed lines the electric transmission line, to last for (140~41a). life of pole direction of strain on years. about 40 angle. To dimension of the internal The Brunot witness described the con- guy wires four strain counteract fitting immediately dition of the T upper part of the were run from pole the accident. ground opposite in directions to the “Q. electric the direction strain was it What kind of condition guy were wires in? transmission lines. pole T fit- means of fastened to tings pieces sepa- A. It was in two —two Kearney. At the manufactured pieces rate I recall. it As guy accident three very strongly, comes mind and the disconnected wires had become end it one there was rust. leaning slightly. pole The crew was There it was a clean engaged appellant was, broke and the rest guy replacing three wires. these like there was rust There on the one side cracked. That’s slightly pole move before felt that broke. broke, eye heard a witnesses and that (attorney Mr. Weis for defend- sagging snap lines and observed a Kearney): ant move to strike pole actually This evi- before the dence, qualifi- for lack of believed, have warranted cation of Mr. Brunot. before that the T undisputed pole broke, since The Court: I think so. W:’re the accident the that after point yet. not to There pieces through two in fact into broken pieces he de- were two piece, an arm one arm One of the T. he scribed what saw. to a still bolted was found Q. rusty? you say Did it was (Exhibit segment pole. P. the broken consisting 7). piece The second pieces Yes, A. there were two upright, found arm and other very vividly my this stands cable bolted still fastened concerned mind we were because segment (Exhibit pole. another an indica- about it. It did show pole 10). of it P. the two tion of rust and the rest The break between place. pole at a second also broke break, my opin- (47a.) caused clean was a the accident. The com- reported ion.” mittee Company sequence of events witness, a member who collapse which led appellant, was crew as the lineman same started with the failure of the T attach- 1, photograph of P. shown Exhibit then ment, and all four affirmed this.conclu- segments *3 fit- the broken T the two testimony sion in their at the trial. ting, point out to to asked was fitting There is evidence that the attorney jury The rust he saw. that question 12,000 should withstand a objected Brunot for the defendant that pounds pressure and that a ton hoist expert witness % as an had not been listed exerting pressure which was on the ca- testify he not that observed and could pounds pressure. ble would exert 1500 ruled. An examina- The court so rust. (129a, 145a). Jenkins, a member of 10 dis- P. P. 7 and P. tion of Exhibits safety investigating committee referred through cross section of that closes to above testified: fitting point arm the T at the discoloration, “Q. any is way broke there Is there a man could oxidation, appears on both enough to be pressure which to the quar- except approximately parts, a for ton] coffin-hoist break [% origi- inch which ter cross section this attachment ? nally pole. rested That nearest Well, good attachment, A. I it’s a appears quarter inch of cross put don’t think a man could ap- It be fresh unoxidized metal. would enough pressure on a coffin- pear, therefore, oxidation had taken hoist, (130a). to break one.” place fitting in the T for a crack Jones, engineer The witness an for prior some time the break. Pennsylvania Electric testi- charged fied he was with determin- ruling excluding The Brunot’s why ing why broke and testimony partially rusty about the cross pole in turn broke. He sent the fit- section at the of a break is incon ting fittings ato manufacturer of such concerning sistent with the discussion perform metallurgy to ply a test. “The re- expert testimony place which took got good metal.” pretrial (47a). conference. Moreover (144a). company The which tested the quite wrong plainly one must be part, however, it, lost and it not expert identify an the rusted (145a). available at the time fitting. parts unrusted a iron cast metallurgical report is not in evi- expression “opinion” The nothing of such Jones’ dence. does refer expression of the more than the any testing possible for defect other perception phenome of the witness of a testing good than whether metal had experience non within common casting; example, been used for persons judges. Pro most See —even any whether stresses had been intro- posed Rules of Evidence for the United casting process duced in the Magistrates States District Courts and might have resulted a crack. (1971); 7-01 Corp., Penn Federal Smith cf. At the end (1934). case the dis- the entire 315 Pa. A. presence jury trict court in the ruling respect repeated with witnesses, 153a). ruled: (e. g. 131a, other judge he had indicated that I have to “As trial conclude experts would use as four members of has made out his Company preponderance Electric safe- a fair ty investigating there a committee who been evidence. That assigned investigate accident and Penn- at the time was sold to sylvania (209- they testify Company.” in their 10a). failure of the If, appears face, on in the as its function absence abnormal use ruling represented weighing secondary reasonable causes is evi- dence of a within court, meaning usurpation trial 402A. jury. function It was for attempt In an to avoid these au pre trier of the facts to determine points thorities the district court ponderance long the evidence so testimony of he Jones that sent the cast any supported laboratory iron ato and the labo In a the case. memorandum ratory reported they the metal ex appellant’s new motion for a good. amined was As we trial, however, judge con the district above, pointed may out the metal have : cludes “good” may but have still contained presented “There record is thus during due crack to stress manufac simply no evidence of there *4 ture or some other cause. But even defect at the time the cast iron hearsay report on Jones’ what the metal Pennsylvania Elec- was furnished to lurgical accepted test showed to be were any Company, tric is there evi- nor of evidence absence a defect as dangerous dence the ul- weighed against evidence could at best be time fur- timate it was user at the tending show initial the evidence the nished or sold.” photographic T the failure the arriving the court In at this conclusion in which there was shows that evidence parts the certain selects ternal oxidation in cross section appel- doubt on the tend to cast which prior T at failure contention that lant’s accident, improperly ex and the however, made, No is reference first.' evidence such cluded of observations of tending evidence referred to above immediately internal oxidation the- fact, plain evi- to establish that judge In this case the trial accident. in- photographic dence exhibits usurped jury of the functions in the cross section ternal oxidation weighing evi of the fitting broke, ex- or to the facts favor dence of observations cluded evidence Corpo Kearney-National the defendant immedi- condition of the ration, Inc. ately after the accident. judgment reversed and will be Pennsylvania strict rule on remanded for a new case liability definitively in Gre is set forth Engineering Co., F. 407 co v. Bucciconi Judge (dissent- DUSEN, Circuit VAN MacDougall 1969) 2d and in 87 ing). Pa.Super. Co., 214 Ford Motor Judge (Pa.Super.1969). A.2d 257 676 from the conclu- respectfully dissent Staley reversing wrote Greco: majority sion judgment. Penn- court the district whether “The we test must this cases, those as sylvania as well minds balanced reasonable and well sup- view, my record, court, the evidence be satisfied court district decision port condition defective adduced 247a): (page follows stated deliv- the machine was existed when F.2d at ered.” 407 presented a record is thus “There simply no there is MacDougall which clear in a strict makes iron the cast liability law a under Pennsylvania Elec- produce furnished evi- have to does any evi- is there nor specific tric defect which caused dence of the dangerous ul- dence mal- of a the accident. The occurrence 388 when the defective existed it was fur- condition the time user at

tímate (Emphasis machine was delivered.” nished or sold.”1 omitted.) added, footnotes 402A of Comment G Section In Mesta Machine Com- Kaczmarek v. provides: Restatement of Torts (3d Cir., Opinion pany, ap “The rule stated 30, 1972), this court filed June said: product plies only at where the “Assuming appellant’s re- hands, the seller’s in a time it leaves correct, construction accident contemplated by the ulti condition automatically liability follow consumer, does not unrea mate sonably dangerous will be his bur- unless the him. satisfied product proof was in product den proof The burden of at the time a defective condition particular seller." par the hands time that it the hands left left added.) (Emphasis injured upon the ticular seller plaintiff; and unless can be proof of There was when the at- no produced support con will actually sold tachment defendant. defective, that it was then clusion Mr. would think Jones testified that he (Emphasis is not sustained.” burden added).2 particular pur- attachment was very pole’s, installa- chased close Co., Motor In v. Pleasant Hills Woods (which tion date of would have Pa.Super. 381, *5 219 281 A.2d 651 eight approximately years been before (1971), Pennsylvania Superior Court the acknowledged accident), it the but that using adopted position, this Restatement may have been a that reused language: years in- 15-20 old at the pole (see 146-47a). stalled the on Jones proof prod- “The the burden of that not even that the attach- could establish in uct was a defective condition at the purchased the de- ment had from been particular time it left the hands of the acknowledged con- fendant and that his upon injured plaintiff; seller the guesswork” (see pp. “just clusion was produced and unless can be evidence 150-51a). supports the conclusion defective, then the is not burden attempted plaintiff introduce to 402A, to Re- sustained. Comment G § testimony at the effect that the trial to 2d, . statement Torts.” portion the attach- there was a rusted Engineering In Greco v. Bucciconi examin- ment obvious to those that Co., 1969), this ing after the accident. the attachment court stated: properly devel- If this oped had might vigorously trial, support- “Bucciconi that the have contends at appellee ed of a defective failed to sustain his burden showing existence a defect at the attachment at the time that was the eight years put pole earlier. But the time of we must the sale. test plaintiff this, in order to I think that is whether reasonable and well do present expert required satisfied an tes- balanced minds would be analysis tify the indicat- adduced that the from that 1. 16A his case evidence. clude that vania Electric “As (243a) L. R. ^[4] ruling the Trial at the time it was sold to : Erumer, at 3-221-22: That Company.” fair 2 Products Judge is, at trial that has I was as have to there was not made out Liability, Pennsyl- follows con- defeat trol phasis misuse, product, to show that ed when the ed “The task of in the course or causing possession added, and not from an unforeseeable further, defendant footnotes the claimant’s counsel of a normal use of damaging event damaging to show that relinquished con- product." omitted.) event result- exist- (Em- casting process ment “must have the accident ed a defect caused” might crack, spent analysis the rest of have resulted or at “trying present expert testimony how show that caused the least collapse” (157-158a). long pole Indeed, rust how indicated that acknowledged As it crack had been the attachment. Smith committee possibility even aft- never considered the the most that can be said may eight occurred, have broken first the accident at least er (158a). testimony by years Further the other after the attachment had been defendant, purchased there was committee revealed members meeting only rusty one four the at- the committee had crack they (168a), days accident tachment An examination testing P-10) pictures (P 1, P-7 and had not seen results of — (166a, 169a), provided supplemental record does the attachment they photo- may to me where the rust was. have even seen disclose (169a). products graphs I taken after the accident do not believe liabili- ty Finally, permits law a find- asked the court wheth- when ing happens, er, on this the committee record that the attachment as often reaching agreement, can- sold in Smith a defective condition. trouble didly answered: appears I note that agreed testimony really. pretty decision to re- well introduce “Not We garding going put in the re- the cracked attach- rust we were what after-thought. port ment it.” was an No mention ever started before pre- (160a). made at this defect all was Indeed, counsel when defendant’s foregoing reasons, I af- For regarding objected to this judgment court. district firm the trial, plaintiff’s counsel can- rust at the didly stated: readily “I not in can admit that it was pre-trial record.”

It seems to me circum in these

stances, principles judicial sound ad preclude plaintiff ministration would al., Ezell Plaintiffs- LITTLETON et “surprising” defendant with this Appellants, theory of new the attachment’s “defec tive un condition.” It would seem that Peyton individually BERBLING, and as the trial is to less become a matter Attorney State’s for Alexander Coun- surprise, must unfair the district court ty, Illinois, al., Defendants-Appellees. et hold counsel to the theories No. 71-1395. grounds liability developed Appeals, United States Court of pre-trial proceedings. Valdesa Com See Seventh Circuit. pania Pe Naviera v. Frota Nacional de Argued 1, troleros, 33, March 1972. 37-38 1965), there cited. cases Decided Oct. 1972. Finally, Stay the evi do not believe Granted Dec. justifies See 93 dence the T-fit S.Ct. 547. ting (74a, before the broke 83a, 84a, 88a, 94a, 101a, 111a). Mr. Smith, the chairman investigation Company safety

committee, majority referred to in the report,

opinion, actually who wrote acknowledged the committee started assuming attach-

off broken