The opinion of the court was delivered by: DUSEN
There is now before the court plaintiff's motion for a new trial, filed after the grant of defendant's motion for a directed verdict under F.R.Civ.P. 50, 28 U.S.C.A., at the conclusion of plaintiff's case, in this personal injury action tried to the court.
On September 7, 1955, plaintiff was employed by third-party defendant in helping to load and unload a truck which hauled rubbish from various business plants to a dump in Philadelphia. On the afternoon of that day (N.T. 9), his truck picked up some drums weighing 300 to 500 pounds from defendant's plant at 3500 Grays Avenue in Philadelphia and took these drums to the dump (N.T. 3-7). At N.T. 7, plaintiff described the drums as follows:
'* * * they have lids on top of them, and the drums supposed to be containing with something poisonous, something like that, they usually always put a cross X on them in white.'
Three of the drums were marked with a white 'X', 3 or 4 were marked with a yellow line and some of the drums had no marking on them at all (N.T. 7-8). Only the drums with the white 'X' on them were sealed (N.T. 10). Plaintiff described the loading and unloading operation as follows at N.T. 10:
'We loaded drums -- we back up to the platform and we rolled the drums on, and we get to the dump, we rolled the drums off, and pull a lever on the drums and can dump them.'
In subsequent parts of his testimony, the plaintiff gave different descriptions of the occurrence of the accident, as follows:
1. At N.T. 51-52, plaintiff testified on cross-examination that the drum hit the ground prior to the lid coming off, using this language:
'Q. Now, in the deposition on page 31 you testified, 'By the time it hit the ground I guess the pressure from it just boomed and the lid come off.'
'I take it by that you meant that the drum dropped on the ground and the lid came off then, is that correct? A. That's right.
'Q. And how was the lid hooked on this particular drum, the drum that we are talking about? A. Well you have lid coming down on the top of the drum something like this, and then have a hook come around like this and hooks back.
'Q. So that there is a lever that is pulled tight on it, is that correct? A. Yes.'
2. At N.T. 78, plaintiff testified, when questioned by the court, that the lid flew off just as he was 'getting ready to tilt' it with these words:
'Well, just getting ready to tilt the drum, this lid flew off, and when the lid flew off this ...