The opinion of the court was delivered by: WOOD
The above diversity actions brought under the Pennsylvania Wrongful Death and Survival Act, 12 P.S. § 1601 et seq.; 20 P.S. § 320.601 et seq., were consolidated for trial, limited to the question of liability, on March 20, 1961. The deaths occurred almost nine years previously on November 18, 1952. Prior actions involving this controversy had been tried in 1953 in the case of Kernan v. American Dredging Co., D.C., 141 F.Supp. 582, No. 137 of 1953 in Admiralty. The first proceeding was before Senior Judge Kirkpatrick on the issue of exoneration. D.C., 141 F.Supp. 582. That case after 1106 pages of testimony ultimately reached the Supreme Court, 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382, and after another 421 pages of testimony was concluded in proceedings before Judge Kraft,
resulting in an award of substantial damages to plaintiff. That case, however, did not dispose of all damages to which the plaintiffs might be entitled if successful in this collateral and belated litigation. We mention at this point the long history of the issues raised here since when this trial began and throughout it, counsel for plaintiffs continuously argued (improperly, we add) that he was faced with 'surprise' and unable to ascertain various facts through discovery and investigation. As we stated to him (NT 137), it is unconscionable that after such lengthy and prolonged litigation and with almost nine years to prepare his case, that he could raise such a question. Further reference to this will appear in our disposal of the motion for a new trial.
The basic facts creating the causes of action are as follows: Early in the evening of November 18, 1952, the tug Arthur N. Herron proceeded with an unloaded scow to port from Mantua Creek up the Schuylkill River. Open-flamed kerosene lanterns were on the port forward and after corners of the scow. The tug proceeded past the Gulf Oil Company docks to a point a mile or more upstream to Atlantic Refining Company's refinery. The unloaded scow was released and the tug took on a loaded scow to return. The exposed kerosene lamps were placed in the same position for the trip back. At this time there was a flood tide at two to three miles per hour. Approximately one-half hour later, at about 10:30 p.m., at a point 200 feet north of the Penrose Ferry Bridge there was a sudden fire which enveloped the tug and the surrounding surface of the water for a distance downstream of the tug of from 100 to 150 feet and had a width of about 100 feet. Careful reading of the record and briefs of counsel substantiated the above. However, we note here, since to us it is important, neither counsel nor the record reveals to us the width of the river at the point of the fire or how far the burning actually was from the Gulf Oil docks or any other similar installations in the general area. In our later discussion of the testimony of the expert, the significance of that point should be apparent.
Bottomed on this set of facts, a clear res ipsa loquitur situation, the plaintiff proceeded to build his case.
The only factual information deduced from this and available to the jury as to all loading and unloading was a mass of incomprehensible, confusing figures and data, so charged with errors and omissions as to be wholly lacking in probative value. It is our firm conviction that there was not an iota of qualified evidence on which a jury could find that there was in fact any spillage of any oil, gasoline or components thereof into the river on that night at the docks of the defendant.
To conclude that there was spillage, would be sheer speculation and guesswork at its worst and legal liability cannot be founded on such assumptions.
Plaintiff then called two experts. One was W. Stoltz, a city fireman, whose testimony was of no value except that he concluded that the fire originated on the river and not on the tug. Since our decision is not based on that point, and it is entirely irrelevant to the issue, where it started has no legal significance under the facts of this case. Dr. Hinckley was next called and asked a long series of hypothetical questions, to some extent, to say the least, based on facts not in evidence. The crucial part of his testimony reads as follows:
'That taking into account the fact -- I don't know how far I will be permitted to go here in interpreting the assumptions that I was asked to make, but clearly if the tug is essentially 100 feet long and it is engulfed in flames, and there are flames this side of it, I can assume a longer path of the fire, longer than 150 feet. To give an idea of what variation there is if the volume of flame is somewhat larger, if it turns out that the fire is 250 feet long, that places the fire 3000 feet from the source of the material.
'Now I don't want to be misunderstood about one statement that I made, that it is clear to me or at least in my opinion it is incontestable that the material that was burning was light hydrocarbons. However, it is quite clear to me that the material on the river was not entirely light hydrocarbons, if I am limited by the things which I was asked to assume.
'If I were, for example, told to limit my calculations to light hydrocarbons, let's say gasoline -- if I had been told to limit my calculations to gasoline on the river and then had been given this set of data and asked to calculate where this material originated, my only answer could be that I had been given an impossible problem.
'It isn't anything wrong with the mathematics, and I want to make this quite clear because, after all, if someone gives me a problem, if I can take the liberty of giving a simple example of what my difficulty would be, if somebody says to me, ,'i have two coins here, two ordinary United States coins, and the value of them put together is 8 cents,' no mathematics in the world can solve this problem because you just can't find two coins that added together to that amount.
'If they had said 6 cents, this would have been simple -- it would have been a penny and a nickel; but if you say, 'I have two coins which together add up to 8 cents,' there is no solution to this problem.
'The fact is that for the fire to have been north of the Penrose Bridge, and to ask me to assume that there is 1 1/2 inches of gasoline or 1.38 inches of gasoline on the water, the spreading rate of gasoline is so extremely high that the source of the gasoline would have had to be inside the fire. It could not -- after all, if I put out this many gallons of gasoline and this many cubic feet of gasoline in the water, it will spread so rapidly that it couldn't stay at 1.38 inches for the duration of a 10-minute fire. Even during the time of the fire itself it would have been spreading so fast that it would have been to both banks, that much gasoline.
'So I am led to conclude that although I cannot determine from the data that I have been given what the material is, I can say positively that it was something heavier, more viscous than gasoline.
'I can say furthermore that the material that was burning was light hydrocarbon. I cannot say what was left on the surface of the river afterwards. There are many petroleum materials which will burn quite fiercely and leave a residue. Those materials that will burn fiercely and leave a residue that is comparatively nonvolatile are clearly substantially more viscous than gasoline; so that the conditions that ...