Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
The defendant sold and delivered to the Emsco Manufacturing Company (Emsco) an R4P Punch Press. This type machine holds a series of punches and dies which allows the operator to change sizes by merely revolving two turrets to the proper selections. A safety device is designed to prevent tripping the punch if it is not properly aligned with the die below. On August 21, 1953 the plaintiff Steele, an employee of Emsco, was operating the machine when a piece of a punch broke off, striking him and eventually causing the loss of his left eye for which he now seeks damages. The plaintiff Texas Employer's Insurance Association intervened to recover the amounts expended for workmen's compensation benefits paid to Steele and for medical expenses incurred in his behalf plus additional expenditures for the defense of his claim.
Plaintiff based his action on the theory that the injury was caused by a deficiency in the safety system employed on the kind of machine involved. A Mr. Vogt qualified as an expert and testified on behalf of the plaintiff that he examined the punch press four years after the accident and, in his opinion, the safety mechanism was not properly designed.
As part of its defense, Wiedemann was permitted to introduce into evidence a purchase order from Emsco, dated one month after the accident, ordering a new safety lever of the same type as the original. There is no evidence that it was installed. Defendant argues that this document was admissible to impeach plaintiff's expert and as a step in its proof that the design of the lever was not the proximate cause of the injury.
The jury returned a general verdict in favor of the defendant. Subsequently the trial court granted plaintiff's motion for a new trial "upon the narrow legal issue that the Court erred in admitting the document in question." Steele v. Wiedemann Mach. Co., D.C.E.D.Pa.1959, 178 F.Supp. 870, 872. However, the district judge was of the opinion that this was a controlling question of law and certified the same pursuant to 28 U.S.C. § 1292 (b). We allowed an appeal.
The general rule excluding evidence of repairs made after an accident is based on two grounds: (1) Policy purposes because
"* * * the admission of such acts * * * would be liable to over-emphasis by the jury, and that it would discourage all owners * * * from improving the place or thing that had caused the injury, because they would fear the evidential use of such acts to their disadvantage * * *."
(2) Relevancy theory in that
"To improve the condition of the injury-causing object is therefore to indicate a belief merely that it has been capable of causing such an injury, but indicates nothing more * * *." That therefore "The supposed inference (owner's belief that his negligence caused the injury) from the act is not the plain and most probable one * * *." Wigmore, Evidence § 283, p. 151 and § 32, ex. 2, p. 420 (3 ed. 1940).See 64 A.L.R.2d 1296, 1303 § 3(b).
Neither reason is applicable because the owner who allegedly made the repairs is not a party to the suit. The evidence does not prejudice him nor was it introduced to prove him negligent so that the general prohibition against that kind of evidence does not operate as a bar in this instance.
The plaintiff attempted to prove that the safety device was defectively designed and from this proof sought to infer that this must have been the proximate cause of the accident. In rebuttal the defense undertook to show that there were other probable causes, i. e. that the original safety lever was missing, worn or broken at the time of the accident. Even where an owner who made repairs is a party, such evidence has been admitted as an exception to the above rule, for the purpose of showing a condition existing at the time of the accident. Johnson v. United States, D.C.Mont. 1958, 163 F.Supp. 388, 395, affirmed 9 Cir., 1959, 270 F.2d 488; 64 A.L.R.2d 1296, 1310, § 6(d); 170 A.L.R. 7, 53-58. The evidence here was competent for that purpose and no policy reason appears whereby it should be excluded.
The plaintiff contends that the document should have been barred because there were other explanations for the purchase equally or more plausible than that the new part was to replace a missing or broken one. To support this plaintiff cites Wigmore, Evidence, § 32 (3 ed. 1940) as follows for the test of admissibility:
"Does the evidentiary fact point to the desired conclusion (not as the only rational hypothesis, but) as the hypothesis (or explanation) more plausible or more natural ...