The defendants were permitted to read from the allegations in the second amended complaint, which were in contradiction of testimony offered by the plaintiff, to establish that the catastrophe was caused in the manner contended by the defendants. This was proper. Stolte et al. v. Larkin, 8 Cir., 110 F.2d 226.
I do not believe that any error existed, therefore, in permitting the defendants to establish and prove the various changes which were made in and about the tank subsequent to the time that it was constructed and turned over to the East Ohio Gas Company for operation.
V. Error in the Instructions to the Jury.
The Court's charge on negligence included the defendants' responsibilities and plaintiff's burden of proof.
The plaintiff has taken excerpts from the contents of the Court's charge and claims that the charge on negligence creates confusion and misunderstanding. However, if the charge is considered as a whole, it is self-evident that the first part of the charge on negligence related to the direct testimony which was presented by the plaintiff to establish that negligence existed in the design, fabrication or construction of said tank. Testimony was offered by the plaintiff that the inner tank was improperly designed, fabricated and constructed. After the completion of the Court's charge on the direct testimony, the Court outlined in its charge that the plaintiff was not bound to establish negligence by direct testimony, but could establish negligence and support a right to recover on the basis of circumstantial evidence from which inferences of negligence could be drawn. The Court then gave a detailed explanation of circumstantial evidence, and the measure of proof required under the law in order to support a right to recover on the basis of circumstantial evidence. If the complete record is read, it is self-evident that the charge of the Court related to the two different theories upon which the plaintiff could premise the right to recover.
Where circumstantial evidence is relied upon to establish that the defendants' breach of duty was the legal cause of the harm suffered, the law requires only that the evidence as to the operative cause of the accident be enough to satisfy reasonable and well-balanced minds that it was the one on which the plaintiff relied. Straight, Admrx., Appellant v. B. F. Goodrich Co., 354 Pa. 391, 47 A.2d 605.
The facts of an accident may be proved by circumstantial evidence and negligence may then be inferred from the facts so found. The plaintiff is not required in proving negligence and its casual connection with an accident where reliance is placed on substantial evidence to eliminate all possible causes other than that on which he relied, but only such other causes, if any, which fairly arise from the evidence. Giordano, Appellant, v. Clement Martin, Inc., et al., 347 Pa. 61, 31 A.2d 504; Fidelity-Philadelphia Trust Co. v. Staats, et al., 358 Pa. 344, 57 A.2d 830; Stanalonis, Admr., v. Branch Motor Express Co., 358 Pa. 426, 57 A.2d 866; Sharble et al. v. Kuehnle-Wilson, Inc., 359 Pa. 494, 59 A.2d 58.
The jury was also instructed that they were not bound to accept the testimony of any witness; that it was their prerogative to pass upon their credibility and to determine where the truth might arise, and at no time was the jury instructed that they were obliged to accept the testimony of any witness, the matter being left solely for their determination.
Where there is contradictory evidence on material facts, the issue of credibility is for the jury, and this is so although a party is contradicted in some respects by his own witnesses. O'Farrall v. Nawson et al., 320 Pa. 316, 182 A. 538.
If contradictory evidence comes from the plaintiff's witnesses, the rule applies that if in one part of the plaintiff's testimony, or that of the witness, it is entitled to go to the jury, and another part not, or where different parts of testimony are inconsistent, it is for the jury to reconcile such conflicting statements and say which shall prevail. Giles, Appellant, v. Bennett et al., 298 Pa. 158, 148 A. 90.
The instructions to the jury were fair and impartial. When considered as a whole, I believe it will be found consistent and in accordance with the provisions of law which govern an action based on negligence.
In a proceeding which is so involved, I doubt if it would be humanly possible to administer the trial without technical error arising, both as to the plaintiff and the defendants.
It is my judgment that no substantial error exists and the disposition of the motion for new trial calls for the application of the rule that 'Mere technical errors which do not affect the substantial rights of the parties are not sufficient to set aside an adverse jury verdict.' He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted. Palmer et al. v. Hoffman, supra.
That burden has not been established in this case. The motion for new trial is refused.
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