of drums were made. We finished the day up. That was our last job with the drums.'
The account of the accident described under 1 above is quite different from that contained in plaintiff's direct examination and in the testimony referred to under 2 above. The Pennsylvania appellate courts have consistently held that a fact finder may not be permitted to choose between conflicting portions of the testimony presented by plaintiff's witnesses on an issue concerning which he has the burden of proof. Lemak v. City of Pittsburgh, 1941, 147 Pa.Super. 62, 65, 66, 23 A.2d 354; Roche v. Pennsylvania R. Co., 1951, 169 Pa. Super. 48, 56, 82 A.2d 332.
In his brief, plaintiff alleges defective sealing of the drum, but there is no evidence concerning the sealing of the lid or that negatives the possibility that a bumpy ride in the truck or contact with the ground, for example, were not the cause of loosening an adequately fastened lid on the drum.
Defendant concedes that the doctrine of res ipsa loquitur is not applicable. Under Pennsylvania law, the plaintiff must prove his allegation of negligence, not merely by showing an accident, but either diretly or by proof of circumstances from which an inference of the ultimate fact of negligence may reasonably be drawn. See Sierocinski v. E. I. Du Pont De Nemours & Co., 3 Cir., 1941, 118 F.2d 531; see, also, Miller v. Hickey, 1951, 368 Pa. 317, 81 A.2d 910; Conway v. Philadelphia Gas Works Co., 1939, 336 Pa. 11, 14, 7 A.2d 326; Foster v. West View Boro., 1937, 328 Pa. 368, 370, 195 A. 82.
Plaintiff contends that the drums were under the exclusive control of defendant so that the evidence is within its exclusive possession and, hence, the burden rests upon the defendant to go forward with evidence explaining the cause of the accident. However, the record makes clear that the drums were in the possession and control of plaintiff's employer (third-party defendant). They were on its premises, after a trip of unestablished length in its truck, when the accident happened. For this reason, the Pennsylvania doctrine of exclusive control is inapplicable.
See Semensky v. Pennsylvania R. Co., 1944, 156 Pa.Super. 555, 559, 41 A.2d 217; Mitchell v. Scharf, 1955, 179 Pa.Super. 220, 225-226, 115 A.2d 774; Kotal v. Goldberg, 1953, 375 Pa. 397, 408-412, 100 A.2d 630.
In reliance on the Pennsylvania cases, which are controlling in this diversity suit, this court has consistently rejected the doctrine of exclusive control in situations such as this. Sierocinski v. E. I. Du Pont De Nemours & Co., D.C.E.D.Pa.1938, 25 F.Supp. 706, 708, reversed on other grounds, 3 Cir., 1939, 103 F.2d 843; Leggieri v. Philadelphia Coca Cola Bottling Co., D.C.E.D.Pa.1959, 171 F.Supp. 749, 750; see, also, Giannone v. United States Steel Corporation, 3 Cir., 1956, 238 F.2d 544, 546.
Section 388 of the Restatement of Torts, relied on by plaintiff, is inapplicable because plaintiff has offered no proof that the chattel, as furnished by defendant to third-party defendant, was, or was likely to be, dangerous for the use for which it was supplied. For example, there is no proof of what was in the drum and there are too many possibilities that could have caused the lid to come off this drum without any fault in its fastening on defendant's part. Cf. Tua v. Brentwood Motor Coach Co., 1952, 371 Pa. 570, 92 A.2d 209.
For the foregoing reasons, plaintiff's motion must be denied. Defendant may submit an order in accordance with this opinion.